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619_nda-7 | 619_nda-7_0 | Q: Receiving Party may share some Confidential Information with some third-parties (including consultants, agents and professional advisors).
Text: EXHIBIT (d)(5)
MUTUAL NON-DISCLOSURE AGREEMENT
This Mutual Non-Disclosure Agreement (the “Agreement”), effective July 31, 2014 (the “Effective Date”), is by and between BioMarin Pharmaceutical Inc., a Delaware corporation, with offices at 105 Digital Drive, Novato, CA 94949 (“BioMarin”), and Prosensa Holding N.V., a Netherlands corporation with offices at J.H. Oortweg 21, 2333 CH, Leiden, The Netherlands. (“Prosensa”). Each of BioMarin and Prosensa may be referred to herein as a “Party” or collectively as the “Parties.”
WHEREAS, the Parties, for their mutual benefit, desire to disclose certain confidential information to one another in order to evaluate a potential business or collaborative relationship. (In the capacity of disclosing information, each Party is referred to as the “Disclosing Party”, and in the capacity of receiving information, each party is referred to as the “Receiving Party”.)
NOW, THEREFORE, in consideration of the premises and covenants contained herein, the Parties agree as follows:
1. Purpose. The Parties have entered into this Agreement to facilitate the transfer of information between them and/or one or more of their Affiliates in order for the Parties to evaluate whether or not to pursue a potential business opportunity or collaboration with respect to the development and commercialization of Prosensa’s products including, but not limited to, Drisapersen (the “Purpose”), and solely for that Purpose, the Parties have disclosed or may disclose to each other information that is proprietary and/or confidential to the Disclosing Party which it desires be treated as confidential. For purposes of this Agreement, with respect to a Party, “Affiliate” shall mean a company controlled by, under the control of, or in common control with such Party.
2. Confidential Information. As used herein, “Confidential Information” shall mean any and all technical and non-technical information previously, presently, or subsequently disclosed or provided by Disclosing Party and/or one or more of its Affiliates to Receiving Party and/or one or more of its Affiliates in written, oral or electronic form. Confidential Information will be deemed to include, without limitation:
(a) any technology, inventions, products, chemical compounds and compositions, formulations, molecules, precursors, methods, concepts, ideas, plans, processes, specifications, characteristics, techniques, know-how and assays; clinical information such as raw data, scientific preclinical or clinical data, observations, records, databases, dosing regimes, clinical studies or protocols, posters, presentations and abstracts, product pipelines, timelines and schedules; business information such as development, marketing, sales, pricing and commercialization plans, forecasts, proposals, customer lists, suppliers, consulting relationships, operating, performance and cost structures, and any other non-public information or other trade secrets, whether scientific, clinical or financial in nature, relating directly or indirectly to the business of the Disclosing Party; and
(b) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that is or has been prepared by or for the Receiving Party and that contains, reflects, interprets or is based directly or indirectly upon any information of the type referred to in Section 2(a) above;
(c) the existence and terms of this Agreement, and the fact that information of the type referred to in Section 2(a) above has been made available to the Receiving Party; and
(d) the fact that discussions or negotiations are or may be taking place with respect to a possible transaction involving the Parties, and the proposed terms of any such transaction.
3. Term. The term of this Agreement commences on the Effective Date and ends on the date one (1) year thereafter. Receiving Party’s obligations to protect Confidential Information disclosed under this Agreement shall survive termination of this Agreement and will be binding upon Receiving Party, its heirs, successors, and assigns for a period of five (5) years from expiration or termination of this Agreement.
4. Treatment of Confidential Information.
(a) Use; Disclosure. Receiving Party shall use the Confidential Information solely for the Purpose defined above. Receiving Party shall not use the Confidential Information for any other purpose, including but not limited to using it in connection with the development or commercialization of any process or product, or using it in connection with any submission to any governmental agency, including any patent office or regulatory authority, or the like, without the express written permission of Disclosing Party. Receiving Party shall disseminate Confidential Information only to those employees, independent contractors, advisors, or Affiliates, on a “need to know” basis in order for Receiving Party to carry out the Purpose, and Receiving Party warrants that all such employees, independent contractors, advisors, or Affiliates shall be advised of the confidential nature of the information received and that all such employees, independent contractors, advisors, Affiliates shall be bound in writing by obligations no less stringent than the terms set forth in this Agreement. Receiving Party agrees to notify Disclosing Party immediately in writing upon any loss, misuse, misappropriation, or other unauthorized disclosure of the Confidential Information of Disclosing Party that may come to Receiving Party’s attention.
(b) Degree of Care. Receiving Party shall hold the Confidential Information in strict confidence, and shall take all reasonable precautions to protect the Confidential Information at all times from unauthorized disclosure, publication, or use, including, without limitation, using at least the same degree of care as it employs to protect its own Confidential Information of like nature (but in any event no less than a reasonable degree of care), acting in a manner consistent with its obligations under this Agreement.
(c) Exclusions. The confidentiality, non-disclosure and non-use obligations of this Agreement shall not apply to Confidential Information disclosed to the Receiving Party that: (i) can be shown by written evidence to be in the Receiving Party’s possession before receipt of the Confidential Information from Disclosing Party; (ii) is independently developed by Receiving Party without the use of the Confidential Information as evidenced by written records; (iii) is or becomes publicly available through no fault of the Receiving Party; or (iv) is rightfully received by the Receiving Party on a non-confidential basis from a third party without breach of a duty of confidentiality to Disclosing Party. As used herein, the term “publicly available” shall mean readily accessible to the public in a written publication, and shall not mean information the substance of which must be pieced together from a number of different publications or other sources.
(d) Legally Required Disclosures. Nothing in this Agreement shall preclude Receiving Party from making any disclosure of Confidential Information that is required by applicable law or regulation or by a valid order of a court or other governmental body having jurisdiction, provided that Receiving Party uses best efforts to limit the scope of the required disclosure, provides notification to Disclosing Party of such requirement as soon as reasonably possible, and cooperates with Disclosing Party in seeking an appropriate protective order, confidential treatment, or similar remedy limiting the subsequent use and disclosure of any information required to be disclosed.
(e) No Obligation to Proceed. Nothing herein shall obligate either Party to proceed with any transaction between them, and each Party reserves the right, in its sole discretion, to terminate the discussions contemplated by this Agreement. This Agreement does not constitute a binding agreement to enter into any definitive agreement. Receiving Party understands that nothing herein requires the disclosure of any Confidential Information by Disclosing Party, which shall be disclosed, if at all, at the discretion of Disclosing Party.
(f) Return of Materials. Immediately upon (a) termination or expiration of this Agreement, (b) the decision by either Party not to enter into the business or scientific relationship contemplated above, or (c) a request by Disclosing Party at any time, Receiving Party will promptly turn over to Disclosing Party, or destroy, all Confidential Information of Disclosing Party and all documents, media, and other tangible materials containing any such Confidential Information and any and all extracts thereof. In the event that Receiving Party destroys Confidential Information, upon the destruction thereof, Receiving Party will issue to Disclosing Party a certificate as proof of compliance with Disclosing Party’s request. Notwithstanding this Section 4(f), the Receiving Party shall not be required to purge Confidential Information from its computer system’s historical back-up media, provided that such Confidential Information that is retained will remain subject to the terms of this Agreement.
(g) No Transfer or License. Nothing in this Agreement is intended to grant or transfer any right to Receiving Party under any patent, copyright or other intellectual property right of Disclosing Party, nor shall this Agreement grant or transfer to the Receiving Party any right in or to the Confidential Information except as expressly set forth herein. None of the Confidential Information which may be disclosed by Disclosing Party shall constitute any representation, warranty, assurance, guarantee or inducement by Disclosing Party to Receiving Party, including, without limitation, with respect to the non-infringement of intellectual property rights, or other rights of third persons.
(h) Both parties hereby acknowledges that in its review the other party’s Confidential Information it and its representatives will have access to material non-public information concerning this other party. Each Party acknowledges, that it and its representatives are aware, that the United States or other applicable securities laws prohibit any person, who has received from an issuer material non-public information relating to an issuer of securities, from purchasing or selling securities of such issuer or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities.
5. Miscellaneous.
(a) Use of Names; Publicity. Except as otherwise provided herein, nothing contained in this Agreement shall be construed as conferring any right on Receiving Party to use in any manner Disclosing Party’s name or any trade name or trademark. Receiving Party will make no public announcement or other public statement concerning the existence of this Agreement or the Parties’ respective performances hereunder without the prior written consent of Disclosing Party, which may be withheld in Disclosing Party’s sole and absolute discretion, except as necessary to comply with applicable law or regulations.
(b) Assignment. Receiving Party shall not transfer or assign any rights or obligations under this Agreement without the prior written consent of Disclosing Party, which consent may be given or withheld in Disclosing Party’s sole and absolute discretion.
(c) Severability. If any provision of this Agreement should be held invalid or unenforceable, the remaining provisions shall be unaffected and shall remain in full force and effect, to the extent consistent with the intent of the parties as evidenced by this Agreement as a whole.
(d) Waivers. All waivers must be in writing and signed by the Party to be charged. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
(e) Notices. All notices or reports permitted or required under this Agreement will be in writing and will be sent by personal delivery or reputable expedited delivery service with signature required. All such notices or reports will be deemed given upon receipt. Notices will be sent to the addresses set forth at the beginning of this Agreement, in this section, or such other addresses as either Party may specify in writing.
(f) Governing Law; Jurisdiction. This Agreement is made under and shall be construed according to the laws of the State of California without regard to any conflict of law principles that would provide for the application of the law of another jurisdiction. Any disputes under this Agreement may be brought in the state courts and the Federal courts located in the Northern District of California, and the parties hereby consent to the personal jurisdiction and exclusive venue of these courts.
(g) Injunctive Relief. Receiving Party agrees that disclosure of Confidential Information without the express written permission of Disclosing Party will cause Disclosing Party irreparable harm and that any breach or threatened breach of this Agreement by Receiving Party will entitle Disclosing Party to injunctive relief, in addition to any other legal and/or equitable remedies available to it. Notwithstanding clause (f), Disclosing Party may seek injunctive relief in any court of competent jurisdiction.
(h) Independence. The Parties do not intend that any agency or partnership relationship be created between them by this Agreement.
(i) Entire Agreement; Amendment. This Agreement constitutes the final, complete and exclusive agreement of the Parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements, communications, negotiations or understandings between the Parties with respect to the matters addressed herein. No modification of or amendment to this Agreement will be effective unless in writing and signed by all Parties.
(j) Counterparts. This Agreement may be executed in one or more counterparts (including by facsimile or .pdf), each of which shall constitute an original and all of which, when taken together, shall constitute one agreement.
IN WITNESS WHEREOF, the Parties have caused this Non-Disclosure Agreement to be executed as of the Effective Date.
PROSENSA HOLDING N.V. BIOMARIN PHARMACEUTICAL INC.
By: /s/ Luc Dochez By: /s/ Joshua Grass
Name: Luc Dochez Name: Joshua Grass
Title: Chief Business Officer Title: SVP, Business and Corporate Development
| Entailment |
619_nda-17 | 619_nda-17_0 | Q: Receiving Party may create a copy of some Confidential Information in some circumstances.
Text: EXHIBIT (d)(5)
MUTUAL NON-DISCLOSURE AGREEMENT
This Mutual Non-Disclosure Agreement (the “Agreement”), effective July 31, 2014 (the “Effective Date”), is by and between BioMarin Pharmaceutical Inc., a Delaware corporation, with offices at 105 Digital Drive, Novato, CA 94949 (“BioMarin”), and Prosensa Holding N.V., a Netherlands corporation with offices at J.H. Oortweg 21, 2333 CH, Leiden, The Netherlands. (“Prosensa”). Each of BioMarin and Prosensa may be referred to herein as a “Party” or collectively as the “Parties.”
WHEREAS, the Parties, for their mutual benefit, desire to disclose certain confidential information to one another in order to evaluate a potential business or collaborative relationship. (In the capacity of disclosing information, each Party is referred to as the “Disclosing Party”, and in the capacity of receiving information, each party is referred to as the “Receiving Party”.)
NOW, THEREFORE, in consideration of the premises and covenants contained herein, the Parties agree as follows:
1. Purpose. The Parties have entered into this Agreement to facilitate the transfer of information between them and/or one or more of their Affiliates in order for the Parties to evaluate whether or not to pursue a potential business opportunity or collaboration with respect to the development and commercialization of Prosensa’s products including, but not limited to, Drisapersen (the “Purpose”), and solely for that Purpose, the Parties have disclosed or may disclose to each other information that is proprietary and/or confidential to the Disclosing Party which it desires be treated as confidential. For purposes of this Agreement, with respect to a Party, “Affiliate” shall mean a company controlled by, under the control of, or in common control with such Party.
2. Confidential Information. As used herein, “Confidential Information” shall mean any and all technical and non-technical information previously, presently, or subsequently disclosed or provided by Disclosing Party and/or one or more of its Affiliates to Receiving Party and/or one or more of its Affiliates in written, oral or electronic form. Confidential Information will be deemed to include, without limitation:
(a) any technology, inventions, products, chemical compounds and compositions, formulations, molecules, precursors, methods, concepts, ideas, plans, processes, specifications, characteristics, techniques, know-how and assays; clinical information such as raw data, scientific preclinical or clinical data, observations, records, databases, dosing regimes, clinical studies or protocols, posters, presentations and abstracts, product pipelines, timelines and schedules; business information such as development, marketing, sales, pricing and commercialization plans, forecasts, proposals, customer lists, suppliers, consulting relationships, operating, performance and cost structures, and any other non-public information or other trade secrets, whether scientific, clinical or financial in nature, relating directly or indirectly to the business of the Disclosing Party; and
(b) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that is or has been prepared by or for the Receiving Party and that contains, reflects, interprets or is based directly or indirectly upon any information of the type referred to in Section 2(a) above;
(c) the existence and terms of this Agreement, and the fact that information of the type referred to in Section 2(a) above has been made available to the Receiving Party; and
(d) the fact that discussions or negotiations are or may be taking place with respect to a possible transaction involving the Parties, and the proposed terms of any such transaction.
3. Term. The term of this Agreement commences on the Effective Date and ends on the date one (1) year thereafter. Receiving Party’s obligations to protect Confidential Information disclosed under this Agreement shall survive termination of this Agreement and will be binding upon Receiving Party, its heirs, successors, and assigns for a period of five (5) years from expiration or termination of this Agreement.
4. Treatment of Confidential Information.
(a) Use; Disclosure. Receiving Party shall use the Confidential Information solely for the Purpose defined above. Receiving Party shall not use the Confidential Information for any other purpose, including but not limited to using it in connection with the development or commercialization of any process or product, or using it in connection with any submission to any governmental agency, including any patent office or regulatory authority, or the like, without the express written permission of Disclosing Party. Receiving Party shall disseminate Confidential Information only to those employees, independent contractors, advisors, or Affiliates, on a “need to know” basis in order for Receiving Party to carry out the Purpose, and Receiving Party warrants that all such employees, independent contractors, advisors, or Affiliates shall be advised of the confidential nature of the information received and that all such employees, independent contractors, advisors, Affiliates shall be bound in writing by obligations no less stringent than the terms set forth in this Agreement. Receiving Party agrees to notify Disclosing Party immediately in writing upon any loss, misuse, misappropriation, or other unauthorized disclosure of the Confidential Information of Disclosing Party that may come to Receiving Party’s attention.
(b) Degree of Care. Receiving Party shall hold the Confidential Information in strict confidence, and shall take all reasonable precautions to protect the Confidential Information at all times from unauthorized disclosure, publication, or use, including, without limitation, using at least the same degree of care as it employs to protect its own Confidential Information of like nature (but in any event no less than a reasonable degree of care), acting in a manner consistent with its obligations under this Agreement.
(c) Exclusions. The confidentiality, non-disclosure and non-use obligations of this Agreement shall not apply to Confidential Information disclosed to the Receiving Party that: (i) can be shown by written evidence to be in the Receiving Party’s possession before receipt of the Confidential Information from Disclosing Party; (ii) is independently developed by Receiving Party without the use of the Confidential Information as evidenced by written records; (iii) is or becomes publicly available through no fault of the Receiving Party; or (iv) is rightfully received by the Receiving Party on a non-confidential basis from a third party without breach of a duty of confidentiality to Disclosing Party. As used herein, the term “publicly available” shall mean readily accessible to the public in a written publication, and shall not mean information the substance of which must be pieced together from a number of different publications or other sources.
(d) Legally Required Disclosures. Nothing in this Agreement shall preclude Receiving Party from making any disclosure of Confidential Information that is required by applicable law or regulation or by a valid order of a court or other governmental body having jurisdiction, provided that Receiving Party uses best efforts to limit the scope of the required disclosure, provides notification to Disclosing Party of such requirement as soon as reasonably possible, and cooperates with Disclosing Party in seeking an appropriate protective order, confidential treatment, or similar remedy limiting the subsequent use and disclosure of any information required to be disclosed.
(e) No Obligation to Proceed. Nothing herein shall obligate either Party to proceed with any transaction between them, and each Party reserves the right, in its sole discretion, to terminate the discussions contemplated by this Agreement. This Agreement does not constitute a binding agreement to enter into any definitive agreement. Receiving Party understands that nothing herein requires the disclosure of any Confidential Information by Disclosing Party, which shall be disclosed, if at all, at the discretion of Disclosing Party.
(f) Return of Materials. Immediately upon (a) termination or expiration of this Agreement, (b) the decision by either Party not to enter into the business or scientific relationship contemplated above, or (c) a request by Disclosing Party at any time, Receiving Party will promptly turn over to Disclosing Party, or destroy, all Confidential Information of Disclosing Party and all documents, media, and other tangible materials containing any such Confidential Information and any and all extracts thereof. In the event that Receiving Party destroys Confidential Information, upon the destruction thereof, Receiving Party will issue to Disclosing Party a certificate as proof of compliance with Disclosing Party’s request. Notwithstanding this Section 4(f), the Receiving Party shall not be required to purge Confidential Information from its computer system’s historical back-up media, provided that such Confidential Information that is retained will remain subject to the terms of this Agreement.
(g) No Transfer or License. Nothing in this Agreement is intended to grant or transfer any right to Receiving Party under any patent, copyright or other intellectual property right of Disclosing Party, nor shall this Agreement grant or transfer to the Receiving Party any right in or to the Confidential Information except as expressly set forth herein. None of the Confidential Information which may be disclosed by Disclosing Party shall constitute any representation, warranty, assurance, guarantee or inducement by Disclosing Party to Receiving Party, including, without limitation, with respect to the non-infringement of intellectual property rights, or other rights of third persons.
(h) Both parties hereby acknowledges that in its review the other party’s Confidential Information it and its representatives will have access to material non-public information concerning this other party. Each Party acknowledges, that it and its representatives are aware, that the United States or other applicable securities laws prohibit any person, who has received from an issuer material non-public information relating to an issuer of securities, from purchasing or selling securities of such issuer or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities.
5. Miscellaneous.
(a) Use of Names; Publicity. Except as otherwise provided herein, nothing contained in this Agreement shall be construed as conferring any right on Receiving Party to use in any manner Disclosing Party’s name or any trade name or trademark. Receiving Party will make no public announcement or other public statement concerning the existence of this Agreement or the Parties’ respective performances hereunder without the prior written consent of Disclosing Party, which may be withheld in Disclosing Party’s sole and absolute discretion, except as necessary to comply with applicable law or regulations.
(b) Assignment. Receiving Party shall not transfer or assign any rights or obligations under this Agreement without the prior written consent of Disclosing Party, which consent may be given or withheld in Disclosing Party’s sole and absolute discretion.
(c) Severability. If any provision of this Agreement should be held invalid or unenforceable, the remaining provisions shall be unaffected and shall remain in full force and effect, to the extent consistent with the intent of the parties as evidenced by this Agreement as a whole.
(d) Waivers. All waivers must be in writing and signed by the Party to be charged. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
(e) Notices. All notices or reports permitted or required under this Agreement will be in writing and will be sent by personal delivery or reputable expedited delivery service with signature required. All such notices or reports will be deemed given upon receipt. Notices will be sent to the addresses set forth at the beginning of this Agreement, in this section, or such other addresses as either Party may specify in writing.
(f) Governing Law; Jurisdiction. This Agreement is made under and shall be construed according to the laws of the State of California without regard to any conflict of law principles that would provide for the application of the law of another jurisdiction. Any disputes under this Agreement may be brought in the state courts and the Federal courts located in the Northern District of California, and the parties hereby consent to the personal jurisdiction and exclusive venue of these courts.
(g) Injunctive Relief. Receiving Party agrees that disclosure of Confidential Information without the express written permission of Disclosing Party will cause Disclosing Party irreparable harm and that any breach or threatened breach of this Agreement by Receiving Party will entitle Disclosing Party to injunctive relief, in addition to any other legal and/or equitable remedies available to it. Notwithstanding clause (f), Disclosing Party may seek injunctive relief in any court of competent jurisdiction.
(h) Independence. The Parties do not intend that any agency or partnership relationship be created between them by this Agreement.
(i) Entire Agreement; Amendment. This Agreement constitutes the final, complete and exclusive agreement of the Parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements, communications, negotiations or understandings between the Parties with respect to the matters addressed herein. No modification of or amendment to this Agreement will be effective unless in writing and signed by all Parties.
(j) Counterparts. This Agreement may be executed in one or more counterparts (including by facsimile or .pdf), each of which shall constitute an original and all of which, when taken together, shall constitute one agreement.
IN WITNESS WHEREOF, the Parties have caused this Non-Disclosure Agreement to be executed as of the Effective Date.
PROSENSA HOLDING N.V. BIOMARIN PHARMACEUTICAL INC.
By: /s/ Luc Dochez By: /s/ Joshua Grass
Name: Luc Dochez Name: Joshua Grass
Title: Chief Business Officer Title: SVP, Business and Corporate Development
| Not mentioned |
619_nda-8 | 619_nda-8_0 | Q: Receiving Party shall notify Disclosing Party in case Receiving Party is required by law, regulation or judicial process to disclose any Confidential Information.
Text: EXHIBIT (d)(5)
MUTUAL NON-DISCLOSURE AGREEMENT
This Mutual Non-Disclosure Agreement (the “Agreement”), effective July 31, 2014 (the “Effective Date”), is by and between BioMarin Pharmaceutical Inc., a Delaware corporation, with offices at 105 Digital Drive, Novato, CA 94949 (“BioMarin”), and Prosensa Holding N.V., a Netherlands corporation with offices at J.H. Oortweg 21, 2333 CH, Leiden, The Netherlands. (“Prosensa”). Each of BioMarin and Prosensa may be referred to herein as a “Party” or collectively as the “Parties.”
WHEREAS, the Parties, for their mutual benefit, desire to disclose certain confidential information to one another in order to evaluate a potential business or collaborative relationship. (In the capacity of disclosing information, each Party is referred to as the “Disclosing Party”, and in the capacity of receiving information, each party is referred to as the “Receiving Party”.)
NOW, THEREFORE, in consideration of the premises and covenants contained herein, the Parties agree as follows:
1. Purpose. The Parties have entered into this Agreement to facilitate the transfer of information between them and/or one or more of their Affiliates in order for the Parties to evaluate whether or not to pursue a potential business opportunity or collaboration with respect to the development and commercialization of Prosensa’s products including, but not limited to, Drisapersen (the “Purpose”), and solely for that Purpose, the Parties have disclosed or may disclose to each other information that is proprietary and/or confidential to the Disclosing Party which it desires be treated as confidential. For purposes of this Agreement, with respect to a Party, “Affiliate” shall mean a company controlled by, under the control of, or in common control with such Party.
2. Confidential Information. As used herein, “Confidential Information” shall mean any and all technical and non-technical information previously, presently, or subsequently disclosed or provided by Disclosing Party and/or one or more of its Affiliates to Receiving Party and/or one or more of its Affiliates in written, oral or electronic form. Confidential Information will be deemed to include, without limitation:
(a) any technology, inventions, products, chemical compounds and compositions, formulations, molecules, precursors, methods, concepts, ideas, plans, processes, specifications, characteristics, techniques, know-how and assays; clinical information such as raw data, scientific preclinical or clinical data, observations, records, databases, dosing regimes, clinical studies or protocols, posters, presentations and abstracts, product pipelines, timelines and schedules; business information such as development, marketing, sales, pricing and commercialization plans, forecasts, proposals, customer lists, suppliers, consulting relationships, operating, performance and cost structures, and any other non-public information or other trade secrets, whether scientific, clinical or financial in nature, relating directly or indirectly to the business of the Disclosing Party; and
(b) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that is or has been prepared by or for the Receiving Party and that contains, reflects, interprets or is based directly or indirectly upon any information of the type referred to in Section 2(a) above;
(c) the existence and terms of this Agreement, and the fact that information of the type referred to in Section 2(a) above has been made available to the Receiving Party; and
(d) the fact that discussions or negotiations are or may be taking place with respect to a possible transaction involving the Parties, and the proposed terms of any such transaction.
3. Term. The term of this Agreement commences on the Effective Date and ends on the date one (1) year thereafter. Receiving Party’s obligations to protect Confidential Information disclosed under this Agreement shall survive termination of this Agreement and will be binding upon Receiving Party, its heirs, successors, and assigns for a period of five (5) years from expiration or termination of this Agreement.
4. Treatment of Confidential Information.
(a) Use; Disclosure. Receiving Party shall use the Confidential Information solely for the Purpose defined above. Receiving Party shall not use the Confidential Information for any other purpose, including but not limited to using it in connection with the development or commercialization of any process or product, or using it in connection with any submission to any governmental agency, including any patent office or regulatory authority, or the like, without the express written permission of Disclosing Party. Receiving Party shall disseminate Confidential Information only to those employees, independent contractors, advisors, or Affiliates, on a “need to know” basis in order for Receiving Party to carry out the Purpose, and Receiving Party warrants that all such employees, independent contractors, advisors, or Affiliates shall be advised of the confidential nature of the information received and that all such employees, independent contractors, advisors, Affiliates shall be bound in writing by obligations no less stringent than the terms set forth in this Agreement. Receiving Party agrees to notify Disclosing Party immediately in writing upon any loss, misuse, misappropriation, or other unauthorized disclosure of the Confidential Information of Disclosing Party that may come to Receiving Party’s attention.
(b) Degree of Care. Receiving Party shall hold the Confidential Information in strict confidence, and shall take all reasonable precautions to protect the Confidential Information at all times from unauthorized disclosure, publication, or use, including, without limitation, using at least the same degree of care as it employs to protect its own Confidential Information of like nature (but in any event no less than a reasonable degree of care), acting in a manner consistent with its obligations under this Agreement.
(c) Exclusions. The confidentiality, non-disclosure and non-use obligations of this Agreement shall not apply to Confidential Information disclosed to the Receiving Party that: (i) can be shown by written evidence to be in the Receiving Party’s possession before receipt of the Confidential Information from Disclosing Party; (ii) is independently developed by Receiving Party without the use of the Confidential Information as evidenced by written records; (iii) is or becomes publicly available through no fault of the Receiving Party; or (iv) is rightfully received by the Receiving Party on a non-confidential basis from a third party without breach of a duty of confidentiality to Disclosing Party. As used herein, the term “publicly available” shall mean readily accessible to the public in a written publication, and shall not mean information the substance of which must be pieced together from a number of different publications or other sources.
(d) Legally Required Disclosures. Nothing in this Agreement shall preclude Receiving Party from making any disclosure of Confidential Information that is required by applicable law or regulation or by a valid order of a court or other governmental body having jurisdiction, provided that Receiving Party uses best efforts to limit the scope of the required disclosure, provides notification to Disclosing Party of such requirement as soon as reasonably possible, and cooperates with Disclosing Party in seeking an appropriate protective order, confidential treatment, or similar remedy limiting the subsequent use and disclosure of any information required to be disclosed.
(e) No Obligation to Proceed. Nothing herein shall obligate either Party to proceed with any transaction between them, and each Party reserves the right, in its sole discretion, to terminate the discussions contemplated by this Agreement. This Agreement does not constitute a binding agreement to enter into any definitive agreement. Receiving Party understands that nothing herein requires the disclosure of any Confidential Information by Disclosing Party, which shall be disclosed, if at all, at the discretion of Disclosing Party.
(f) Return of Materials. Immediately upon (a) termination or expiration of this Agreement, (b) the decision by either Party not to enter into the business or scientific relationship contemplated above, or (c) a request by Disclosing Party at any time, Receiving Party will promptly turn over to Disclosing Party, or destroy, all Confidential Information of Disclosing Party and all documents, media, and other tangible materials containing any such Confidential Information and any and all extracts thereof. In the event that Receiving Party destroys Confidential Information, upon the destruction thereof, Receiving Party will issue to Disclosing Party a certificate as proof of compliance with Disclosing Party’s request. Notwithstanding this Section 4(f), the Receiving Party shall not be required to purge Confidential Information from its computer system’s historical back-up media, provided that such Confidential Information that is retained will remain subject to the terms of this Agreement.
(g) No Transfer or License. Nothing in this Agreement is intended to grant or transfer any right to Receiving Party under any patent, copyright or other intellectual property right of Disclosing Party, nor shall this Agreement grant or transfer to the Receiving Party any right in or to the Confidential Information except as expressly set forth herein. None of the Confidential Information which may be disclosed by Disclosing Party shall constitute any representation, warranty, assurance, guarantee or inducement by Disclosing Party to Receiving Party, including, without limitation, with respect to the non-infringement of intellectual property rights, or other rights of third persons.
(h) Both parties hereby acknowledges that in its review the other party’s Confidential Information it and its representatives will have access to material non-public information concerning this other party. Each Party acknowledges, that it and its representatives are aware, that the United States or other applicable securities laws prohibit any person, who has received from an issuer material non-public information relating to an issuer of securities, from purchasing or selling securities of such issuer or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities.
5. Miscellaneous.
(a) Use of Names; Publicity. Except as otherwise provided herein, nothing contained in this Agreement shall be construed as conferring any right on Receiving Party to use in any manner Disclosing Party’s name or any trade name or trademark. Receiving Party will make no public announcement or other public statement concerning the existence of this Agreement or the Parties’ respective performances hereunder without the prior written consent of Disclosing Party, which may be withheld in Disclosing Party’s sole and absolute discretion, except as necessary to comply with applicable law or regulations.
(b) Assignment. Receiving Party shall not transfer or assign any rights or obligations under this Agreement without the prior written consent of Disclosing Party, which consent may be given or withheld in Disclosing Party’s sole and absolute discretion.
(c) Severability. If any provision of this Agreement should be held invalid or unenforceable, the remaining provisions shall be unaffected and shall remain in full force and effect, to the extent consistent with the intent of the parties as evidenced by this Agreement as a whole.
(d) Waivers. All waivers must be in writing and signed by the Party to be charged. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
(e) Notices. All notices or reports permitted or required under this Agreement will be in writing and will be sent by personal delivery or reputable expedited delivery service with signature required. All such notices or reports will be deemed given upon receipt. Notices will be sent to the addresses set forth at the beginning of this Agreement, in this section, or such other addresses as either Party may specify in writing.
(f) Governing Law; Jurisdiction. This Agreement is made under and shall be construed according to the laws of the State of California without regard to any conflict of law principles that would provide for the application of the law of another jurisdiction. Any disputes under this Agreement may be brought in the state courts and the Federal courts located in the Northern District of California, and the parties hereby consent to the personal jurisdiction and exclusive venue of these courts.
(g) Injunctive Relief. Receiving Party agrees that disclosure of Confidential Information without the express written permission of Disclosing Party will cause Disclosing Party irreparable harm and that any breach or threatened breach of this Agreement by Receiving Party will entitle Disclosing Party to injunctive relief, in addition to any other legal and/or equitable remedies available to it. Notwithstanding clause (f), Disclosing Party may seek injunctive relief in any court of competent jurisdiction.
(h) Independence. The Parties do not intend that any agency or partnership relationship be created between them by this Agreement.
(i) Entire Agreement; Amendment. This Agreement constitutes the final, complete and exclusive agreement of the Parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements, communications, negotiations or understandings between the Parties with respect to the matters addressed herein. No modification of or amendment to this Agreement will be effective unless in writing and signed by all Parties.
(j) Counterparts. This Agreement may be executed in one or more counterparts (including by facsimile or .pdf), each of which shall constitute an original and all of which, when taken together, shall constitute one agreement.
IN WITNESS WHEREOF, the Parties have caused this Non-Disclosure Agreement to be executed as of the Effective Date.
PROSENSA HOLDING N.V. BIOMARIN PHARMACEUTICAL INC.
By: /s/ Luc Dochez By: /s/ Joshua Grass
Name: Luc Dochez Name: Joshua Grass
Title: Chief Business Officer Title: SVP, Business and Corporate Development
| Entailment |
619_nda-13 | 619_nda-13_0 | Q: Receiving Party may acquire information similar to Confidential Information from a third party.
Text: EXHIBIT (d)(5)
MUTUAL NON-DISCLOSURE AGREEMENT
This Mutual Non-Disclosure Agreement (the “Agreement”), effective July 31, 2014 (the “Effective Date”), is by and between BioMarin Pharmaceutical Inc., a Delaware corporation, with offices at 105 Digital Drive, Novato, CA 94949 (“BioMarin”), and Prosensa Holding N.V., a Netherlands corporation with offices at J.H. Oortweg 21, 2333 CH, Leiden, The Netherlands. (“Prosensa”). Each of BioMarin and Prosensa may be referred to herein as a “Party” or collectively as the “Parties.”
WHEREAS, the Parties, for their mutual benefit, desire to disclose certain confidential information to one another in order to evaluate a potential business or collaborative relationship. (In the capacity of disclosing information, each Party is referred to as the “Disclosing Party”, and in the capacity of receiving information, each party is referred to as the “Receiving Party”.)
NOW, THEREFORE, in consideration of the premises and covenants contained herein, the Parties agree as follows:
1. Purpose. The Parties have entered into this Agreement to facilitate the transfer of information between them and/or one or more of their Affiliates in order for the Parties to evaluate whether or not to pursue a potential business opportunity or collaboration with respect to the development and commercialization of Prosensa’s products including, but not limited to, Drisapersen (the “Purpose”), and solely for that Purpose, the Parties have disclosed or may disclose to each other information that is proprietary and/or confidential to the Disclosing Party which it desires be treated as confidential. For purposes of this Agreement, with respect to a Party, “Affiliate” shall mean a company controlled by, under the control of, or in common control with such Party.
2. Confidential Information. As used herein, “Confidential Information” shall mean any and all technical and non-technical information previously, presently, or subsequently disclosed or provided by Disclosing Party and/or one or more of its Affiliates to Receiving Party and/or one or more of its Affiliates in written, oral or electronic form. Confidential Information will be deemed to include, without limitation:
(a) any technology, inventions, products, chemical compounds and compositions, formulations, molecules, precursors, methods, concepts, ideas, plans, processes, specifications, characteristics, techniques, know-how and assays; clinical information such as raw data, scientific preclinical or clinical data, observations, records, databases, dosing regimes, clinical studies or protocols, posters, presentations and abstracts, product pipelines, timelines and schedules; business information such as development, marketing, sales, pricing and commercialization plans, forecasts, proposals, customer lists, suppliers, consulting relationships, operating, performance and cost structures, and any other non-public information or other trade secrets, whether scientific, clinical or financial in nature, relating directly or indirectly to the business of the Disclosing Party; and
(b) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that is or has been prepared by or for the Receiving Party and that contains, reflects, interprets or is based directly or indirectly upon any information of the type referred to in Section 2(a) above;
(c) the existence and terms of this Agreement, and the fact that information of the type referred to in Section 2(a) above has been made available to the Receiving Party; and
(d) the fact that discussions or negotiations are or may be taking place with respect to a possible transaction involving the Parties, and the proposed terms of any such transaction.
3. Term. The term of this Agreement commences on the Effective Date and ends on the date one (1) year thereafter. Receiving Party’s obligations to protect Confidential Information disclosed under this Agreement shall survive termination of this Agreement and will be binding upon Receiving Party, its heirs, successors, and assigns for a period of five (5) years from expiration or termination of this Agreement.
4. Treatment of Confidential Information.
(a) Use; Disclosure. Receiving Party shall use the Confidential Information solely for the Purpose defined above. Receiving Party shall not use the Confidential Information for any other purpose, including but not limited to using it in connection with the development or commercialization of any process or product, or using it in connection with any submission to any governmental agency, including any patent office or regulatory authority, or the like, without the express written permission of Disclosing Party. Receiving Party shall disseminate Confidential Information only to those employees, independent contractors, advisors, or Affiliates, on a “need to know” basis in order for Receiving Party to carry out the Purpose, and Receiving Party warrants that all such employees, independent contractors, advisors, or Affiliates shall be advised of the confidential nature of the information received and that all such employees, independent contractors, advisors, Affiliates shall be bound in writing by obligations no less stringent than the terms set forth in this Agreement. Receiving Party agrees to notify Disclosing Party immediately in writing upon any loss, misuse, misappropriation, or other unauthorized disclosure of the Confidential Information of Disclosing Party that may come to Receiving Party’s attention.
(b) Degree of Care. Receiving Party shall hold the Confidential Information in strict confidence, and shall take all reasonable precautions to protect the Confidential Information at all times from unauthorized disclosure, publication, or use, including, without limitation, using at least the same degree of care as it employs to protect its own Confidential Information of like nature (but in any event no less than a reasonable degree of care), acting in a manner consistent with its obligations under this Agreement.
(c) Exclusions. The confidentiality, non-disclosure and non-use obligations of this Agreement shall not apply to Confidential Information disclosed to the Receiving Party that: (i) can be shown by written evidence to be in the Receiving Party’s possession before receipt of the Confidential Information from Disclosing Party; (ii) is independently developed by Receiving Party without the use of the Confidential Information as evidenced by written records; (iii) is or becomes publicly available through no fault of the Receiving Party; or (iv) is rightfully received by the Receiving Party on a non-confidential basis from a third party without breach of a duty of confidentiality to Disclosing Party. As used herein, the term “publicly available” shall mean readily accessible to the public in a written publication, and shall not mean information the substance of which must be pieced together from a number of different publications or other sources.
(d) Legally Required Disclosures. Nothing in this Agreement shall preclude Receiving Party from making any disclosure of Confidential Information that is required by applicable law or regulation or by a valid order of a court or other governmental body having jurisdiction, provided that Receiving Party uses best efforts to limit the scope of the required disclosure, provides notification to Disclosing Party of such requirement as soon as reasonably possible, and cooperates with Disclosing Party in seeking an appropriate protective order, confidential treatment, or similar remedy limiting the subsequent use and disclosure of any information required to be disclosed.
(e) No Obligation to Proceed. Nothing herein shall obligate either Party to proceed with any transaction between them, and each Party reserves the right, in its sole discretion, to terminate the discussions contemplated by this Agreement. This Agreement does not constitute a binding agreement to enter into any definitive agreement. Receiving Party understands that nothing herein requires the disclosure of any Confidential Information by Disclosing Party, which shall be disclosed, if at all, at the discretion of Disclosing Party.
(f) Return of Materials. Immediately upon (a) termination or expiration of this Agreement, (b) the decision by either Party not to enter into the business or scientific relationship contemplated above, or (c) a request by Disclosing Party at any time, Receiving Party will promptly turn over to Disclosing Party, or destroy, all Confidential Information of Disclosing Party and all documents, media, and other tangible materials containing any such Confidential Information and any and all extracts thereof. In the event that Receiving Party destroys Confidential Information, upon the destruction thereof, Receiving Party will issue to Disclosing Party a certificate as proof of compliance with Disclosing Party’s request. Notwithstanding this Section 4(f), the Receiving Party shall not be required to purge Confidential Information from its computer system’s historical back-up media, provided that such Confidential Information that is retained will remain subject to the terms of this Agreement.
(g) No Transfer or License. Nothing in this Agreement is intended to grant or transfer any right to Receiving Party under any patent, copyright or other intellectual property right of Disclosing Party, nor shall this Agreement grant or transfer to the Receiving Party any right in or to the Confidential Information except as expressly set forth herein. None of the Confidential Information which may be disclosed by Disclosing Party shall constitute any representation, warranty, assurance, guarantee or inducement by Disclosing Party to Receiving Party, including, without limitation, with respect to the non-infringement of intellectual property rights, or other rights of third persons.
(h) Both parties hereby acknowledges that in its review the other party’s Confidential Information it and its representatives will have access to material non-public information concerning this other party. Each Party acknowledges, that it and its representatives are aware, that the United States or other applicable securities laws prohibit any person, who has received from an issuer material non-public information relating to an issuer of securities, from purchasing or selling securities of such issuer or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities.
5. Miscellaneous.
(a) Use of Names; Publicity. Except as otherwise provided herein, nothing contained in this Agreement shall be construed as conferring any right on Receiving Party to use in any manner Disclosing Party’s name or any trade name or trademark. Receiving Party will make no public announcement or other public statement concerning the existence of this Agreement or the Parties’ respective performances hereunder without the prior written consent of Disclosing Party, which may be withheld in Disclosing Party’s sole and absolute discretion, except as necessary to comply with applicable law or regulations.
(b) Assignment. Receiving Party shall not transfer or assign any rights or obligations under this Agreement without the prior written consent of Disclosing Party, which consent may be given or withheld in Disclosing Party’s sole and absolute discretion.
(c) Severability. If any provision of this Agreement should be held invalid or unenforceable, the remaining provisions shall be unaffected and shall remain in full force and effect, to the extent consistent with the intent of the parties as evidenced by this Agreement as a whole.
(d) Waivers. All waivers must be in writing and signed by the Party to be charged. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
(e) Notices. All notices or reports permitted or required under this Agreement will be in writing and will be sent by personal delivery or reputable expedited delivery service with signature required. All such notices or reports will be deemed given upon receipt. Notices will be sent to the addresses set forth at the beginning of this Agreement, in this section, or such other addresses as either Party may specify in writing.
(f) Governing Law; Jurisdiction. This Agreement is made under and shall be construed according to the laws of the State of California without regard to any conflict of law principles that would provide for the application of the law of another jurisdiction. Any disputes under this Agreement may be brought in the state courts and the Federal courts located in the Northern District of California, and the parties hereby consent to the personal jurisdiction and exclusive venue of these courts.
(g) Injunctive Relief. Receiving Party agrees that disclosure of Confidential Information without the express written permission of Disclosing Party will cause Disclosing Party irreparable harm and that any breach or threatened breach of this Agreement by Receiving Party will entitle Disclosing Party to injunctive relief, in addition to any other legal and/or equitable remedies available to it. Notwithstanding clause (f), Disclosing Party may seek injunctive relief in any court of competent jurisdiction.
(h) Independence. The Parties do not intend that any agency or partnership relationship be created between them by this Agreement.
(i) Entire Agreement; Amendment. This Agreement constitutes the final, complete and exclusive agreement of the Parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements, communications, negotiations or understandings between the Parties with respect to the matters addressed herein. No modification of or amendment to this Agreement will be effective unless in writing and signed by all Parties.
(j) Counterparts. This Agreement may be executed in one or more counterparts (including by facsimile or .pdf), each of which shall constitute an original and all of which, when taken together, shall constitute one agreement.
IN WITNESS WHEREOF, the Parties have caused this Non-Disclosure Agreement to be executed as of the Effective Date.
PROSENSA HOLDING N.V. BIOMARIN PHARMACEUTICAL INC.
By: /s/ Luc Dochez By: /s/ Joshua Grass
Name: Luc Dochez Name: Joshua Grass
Title: Chief Business Officer Title: SVP, Business and Corporate Development
| Entailment |
619_nda-5 | 619_nda-5_0 | Q: Receiving Party may share some Confidential Information with some of Receiving Party's employees.
Text: EXHIBIT (d)(5)
MUTUAL NON-DISCLOSURE AGREEMENT
This Mutual Non-Disclosure Agreement (the “Agreement”), effective July 31, 2014 (the “Effective Date”), is by and between BioMarin Pharmaceutical Inc., a Delaware corporation, with offices at 105 Digital Drive, Novato, CA 94949 (“BioMarin”), and Prosensa Holding N.V., a Netherlands corporation with offices at J.H. Oortweg 21, 2333 CH, Leiden, The Netherlands. (“Prosensa”). Each of BioMarin and Prosensa may be referred to herein as a “Party” or collectively as the “Parties.”
WHEREAS, the Parties, for their mutual benefit, desire to disclose certain confidential information to one another in order to evaluate a potential business or collaborative relationship. (In the capacity of disclosing information, each Party is referred to as the “Disclosing Party”, and in the capacity of receiving information, each party is referred to as the “Receiving Party”.)
NOW, THEREFORE, in consideration of the premises and covenants contained herein, the Parties agree as follows:
1. Purpose. The Parties have entered into this Agreement to facilitate the transfer of information between them and/or one or more of their Affiliates in order for the Parties to evaluate whether or not to pursue a potential business opportunity or collaboration with respect to the development and commercialization of Prosensa’s products including, but not limited to, Drisapersen (the “Purpose”), and solely for that Purpose, the Parties have disclosed or may disclose to each other information that is proprietary and/or confidential to the Disclosing Party which it desires be treated as confidential. For purposes of this Agreement, with respect to a Party, “Affiliate” shall mean a company controlled by, under the control of, or in common control with such Party.
2. Confidential Information. As used herein, “Confidential Information” shall mean any and all technical and non-technical information previously, presently, or subsequently disclosed or provided by Disclosing Party and/or one or more of its Affiliates to Receiving Party and/or one or more of its Affiliates in written, oral or electronic form. Confidential Information will be deemed to include, without limitation:
(a) any technology, inventions, products, chemical compounds and compositions, formulations, molecules, precursors, methods, concepts, ideas, plans, processes, specifications, characteristics, techniques, know-how and assays; clinical information such as raw data, scientific preclinical or clinical data, observations, records, databases, dosing regimes, clinical studies or protocols, posters, presentations and abstracts, product pipelines, timelines and schedules; business information such as development, marketing, sales, pricing and commercialization plans, forecasts, proposals, customer lists, suppliers, consulting relationships, operating, performance and cost structures, and any other non-public information or other trade secrets, whether scientific, clinical or financial in nature, relating directly or indirectly to the business of the Disclosing Party; and
(b) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that is or has been prepared by or for the Receiving Party and that contains, reflects, interprets or is based directly or indirectly upon any information of the type referred to in Section 2(a) above;
(c) the existence and terms of this Agreement, and the fact that information of the type referred to in Section 2(a) above has been made available to the Receiving Party; and
(d) the fact that discussions or negotiations are or may be taking place with respect to a possible transaction involving the Parties, and the proposed terms of any such transaction.
3. Term. The term of this Agreement commences on the Effective Date and ends on the date one (1) year thereafter. Receiving Party’s obligations to protect Confidential Information disclosed under this Agreement shall survive termination of this Agreement and will be binding upon Receiving Party, its heirs, successors, and assigns for a period of five (5) years from expiration or termination of this Agreement.
4. Treatment of Confidential Information.
(a) Use; Disclosure. Receiving Party shall use the Confidential Information solely for the Purpose defined above. Receiving Party shall not use the Confidential Information for any other purpose, including but not limited to using it in connection with the development or commercialization of any process or product, or using it in connection with any submission to any governmental agency, including any patent office or regulatory authority, or the like, without the express written permission of Disclosing Party. Receiving Party shall disseminate Confidential Information only to those employees, independent contractors, advisors, or Affiliates, on a “need to know” basis in order for Receiving Party to carry out the Purpose, and Receiving Party warrants that all such employees, independent contractors, advisors, or Affiliates shall be advised of the confidential nature of the information received and that all such employees, independent contractors, advisors, Affiliates shall be bound in writing by obligations no less stringent than the terms set forth in this Agreement. Receiving Party agrees to notify Disclosing Party immediately in writing upon any loss, misuse, misappropriation, or other unauthorized disclosure of the Confidential Information of Disclosing Party that may come to Receiving Party’s attention.
(b) Degree of Care. Receiving Party shall hold the Confidential Information in strict confidence, and shall take all reasonable precautions to protect the Confidential Information at all times from unauthorized disclosure, publication, or use, including, without limitation, using at least the same degree of care as it employs to protect its own Confidential Information of like nature (but in any event no less than a reasonable degree of care), acting in a manner consistent with its obligations under this Agreement.
(c) Exclusions. The confidentiality, non-disclosure and non-use obligations of this Agreement shall not apply to Confidential Information disclosed to the Receiving Party that: (i) can be shown by written evidence to be in the Receiving Party’s possession before receipt of the Confidential Information from Disclosing Party; (ii) is independently developed by Receiving Party without the use of the Confidential Information as evidenced by written records; (iii) is or becomes publicly available through no fault of the Receiving Party; or (iv) is rightfully received by the Receiving Party on a non-confidential basis from a third party without breach of a duty of confidentiality to Disclosing Party. As used herein, the term “publicly available” shall mean readily accessible to the public in a written publication, and shall not mean information the substance of which must be pieced together from a number of different publications or other sources.
(d) Legally Required Disclosures. Nothing in this Agreement shall preclude Receiving Party from making any disclosure of Confidential Information that is required by applicable law or regulation or by a valid order of a court or other governmental body having jurisdiction, provided that Receiving Party uses best efforts to limit the scope of the required disclosure, provides notification to Disclosing Party of such requirement as soon as reasonably possible, and cooperates with Disclosing Party in seeking an appropriate protective order, confidential treatment, or similar remedy limiting the subsequent use and disclosure of any information required to be disclosed.
(e) No Obligation to Proceed. Nothing herein shall obligate either Party to proceed with any transaction between them, and each Party reserves the right, in its sole discretion, to terminate the discussions contemplated by this Agreement. This Agreement does not constitute a binding agreement to enter into any definitive agreement. Receiving Party understands that nothing herein requires the disclosure of any Confidential Information by Disclosing Party, which shall be disclosed, if at all, at the discretion of Disclosing Party.
(f) Return of Materials. Immediately upon (a) termination or expiration of this Agreement, (b) the decision by either Party not to enter into the business or scientific relationship contemplated above, or (c) a request by Disclosing Party at any time, Receiving Party will promptly turn over to Disclosing Party, or destroy, all Confidential Information of Disclosing Party and all documents, media, and other tangible materials containing any such Confidential Information and any and all extracts thereof. In the event that Receiving Party destroys Confidential Information, upon the destruction thereof, Receiving Party will issue to Disclosing Party a certificate as proof of compliance with Disclosing Party’s request. Notwithstanding this Section 4(f), the Receiving Party shall not be required to purge Confidential Information from its computer system’s historical back-up media, provided that such Confidential Information that is retained will remain subject to the terms of this Agreement.
(g) No Transfer or License. Nothing in this Agreement is intended to grant or transfer any right to Receiving Party under any patent, copyright or other intellectual property right of Disclosing Party, nor shall this Agreement grant or transfer to the Receiving Party any right in or to the Confidential Information except as expressly set forth herein. None of the Confidential Information which may be disclosed by Disclosing Party shall constitute any representation, warranty, assurance, guarantee or inducement by Disclosing Party to Receiving Party, including, without limitation, with respect to the non-infringement of intellectual property rights, or other rights of third persons.
(h) Both parties hereby acknowledges that in its review the other party’s Confidential Information it and its representatives will have access to material non-public information concerning this other party. Each Party acknowledges, that it and its representatives are aware, that the United States or other applicable securities laws prohibit any person, who has received from an issuer material non-public information relating to an issuer of securities, from purchasing or selling securities of such issuer or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities.
5. Miscellaneous.
(a) Use of Names; Publicity. Except as otherwise provided herein, nothing contained in this Agreement shall be construed as conferring any right on Receiving Party to use in any manner Disclosing Party’s name or any trade name or trademark. Receiving Party will make no public announcement or other public statement concerning the existence of this Agreement or the Parties’ respective performances hereunder without the prior written consent of Disclosing Party, which may be withheld in Disclosing Party’s sole and absolute discretion, except as necessary to comply with applicable law or regulations.
(b) Assignment. Receiving Party shall not transfer or assign any rights or obligations under this Agreement without the prior written consent of Disclosing Party, which consent may be given or withheld in Disclosing Party’s sole and absolute discretion.
(c) Severability. If any provision of this Agreement should be held invalid or unenforceable, the remaining provisions shall be unaffected and shall remain in full force and effect, to the extent consistent with the intent of the parties as evidenced by this Agreement as a whole.
(d) Waivers. All waivers must be in writing and signed by the Party to be charged. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
(e) Notices. All notices or reports permitted or required under this Agreement will be in writing and will be sent by personal delivery or reputable expedited delivery service with signature required. All such notices or reports will be deemed given upon receipt. Notices will be sent to the addresses set forth at the beginning of this Agreement, in this section, or such other addresses as either Party may specify in writing.
(f) Governing Law; Jurisdiction. This Agreement is made under and shall be construed according to the laws of the State of California without regard to any conflict of law principles that would provide for the application of the law of another jurisdiction. Any disputes under this Agreement may be brought in the state courts and the Federal courts located in the Northern District of California, and the parties hereby consent to the personal jurisdiction and exclusive venue of these courts.
(g) Injunctive Relief. Receiving Party agrees that disclosure of Confidential Information without the express written permission of Disclosing Party will cause Disclosing Party irreparable harm and that any breach or threatened breach of this Agreement by Receiving Party will entitle Disclosing Party to injunctive relief, in addition to any other legal and/or equitable remedies available to it. Notwithstanding clause (f), Disclosing Party may seek injunctive relief in any court of competent jurisdiction.
(h) Independence. The Parties do not intend that any agency or partnership relationship be created between them by this Agreement.
(i) Entire Agreement; Amendment. This Agreement constitutes the final, complete and exclusive agreement of the Parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements, communications, negotiations or understandings between the Parties with respect to the matters addressed herein. No modification of or amendment to this Agreement will be effective unless in writing and signed by all Parties.
(j) Counterparts. This Agreement may be executed in one or more counterparts (including by facsimile or .pdf), each of which shall constitute an original and all of which, when taken together, shall constitute one agreement.
IN WITNESS WHEREOF, the Parties have caused this Non-Disclosure Agreement to be executed as of the Effective Date.
PROSENSA HOLDING N.V. BIOMARIN PHARMACEUTICAL INC.
By: /s/ Luc Dochez By: /s/ Joshua Grass
Name: Luc Dochez Name: Joshua Grass
Title: Chief Business Officer Title: SVP, Business and Corporate Development
| Entailment |
619_nda-4 | 619_nda-4_0 | Q: Receiving Party shall not use any Confidential Information for any purpose other than the purposes stated in Agreement.
Text: EXHIBIT (d)(5)
MUTUAL NON-DISCLOSURE AGREEMENT
This Mutual Non-Disclosure Agreement (the “Agreement”), effective July 31, 2014 (the “Effective Date”), is by and between BioMarin Pharmaceutical Inc., a Delaware corporation, with offices at 105 Digital Drive, Novato, CA 94949 (“BioMarin”), and Prosensa Holding N.V., a Netherlands corporation with offices at J.H. Oortweg 21, 2333 CH, Leiden, The Netherlands. (“Prosensa”). Each of BioMarin and Prosensa may be referred to herein as a “Party” or collectively as the “Parties.”
WHEREAS, the Parties, for their mutual benefit, desire to disclose certain confidential information to one another in order to evaluate a potential business or collaborative relationship. (In the capacity of disclosing information, each Party is referred to as the “Disclosing Party”, and in the capacity of receiving information, each party is referred to as the “Receiving Party”.)
NOW, THEREFORE, in consideration of the premises and covenants contained herein, the Parties agree as follows:
1. Purpose. The Parties have entered into this Agreement to facilitate the transfer of information between them and/or one or more of their Affiliates in order for the Parties to evaluate whether or not to pursue a potential business opportunity or collaboration with respect to the development and commercialization of Prosensa’s products including, but not limited to, Drisapersen (the “Purpose”), and solely for that Purpose, the Parties have disclosed or may disclose to each other information that is proprietary and/or confidential to the Disclosing Party which it desires be treated as confidential. For purposes of this Agreement, with respect to a Party, “Affiliate” shall mean a company controlled by, under the control of, or in common control with such Party.
2. Confidential Information. As used herein, “Confidential Information” shall mean any and all technical and non-technical information previously, presently, or subsequently disclosed or provided by Disclosing Party and/or one or more of its Affiliates to Receiving Party and/or one or more of its Affiliates in written, oral or electronic form. Confidential Information will be deemed to include, without limitation:
(a) any technology, inventions, products, chemical compounds and compositions, formulations, molecules, precursors, methods, concepts, ideas, plans, processes, specifications, characteristics, techniques, know-how and assays; clinical information such as raw data, scientific preclinical or clinical data, observations, records, databases, dosing regimes, clinical studies or protocols, posters, presentations and abstracts, product pipelines, timelines and schedules; business information such as development, marketing, sales, pricing and commercialization plans, forecasts, proposals, customer lists, suppliers, consulting relationships, operating, performance and cost structures, and any other non-public information or other trade secrets, whether scientific, clinical or financial in nature, relating directly or indirectly to the business of the Disclosing Party; and
(b) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that is or has been prepared by or for the Receiving Party and that contains, reflects, interprets or is based directly or indirectly upon any information of the type referred to in Section 2(a) above;
(c) the existence and terms of this Agreement, and the fact that information of the type referred to in Section 2(a) above has been made available to the Receiving Party; and
(d) the fact that discussions or negotiations are or may be taking place with respect to a possible transaction involving the Parties, and the proposed terms of any such transaction.
3. Term. The term of this Agreement commences on the Effective Date and ends on the date one (1) year thereafter. Receiving Party’s obligations to protect Confidential Information disclosed under this Agreement shall survive termination of this Agreement and will be binding upon Receiving Party, its heirs, successors, and assigns for a period of five (5) years from expiration or termination of this Agreement.
4. Treatment of Confidential Information.
(a) Use; Disclosure. Receiving Party shall use the Confidential Information solely for the Purpose defined above. Receiving Party shall not use the Confidential Information for any other purpose, including but not limited to using it in connection with the development or commercialization of any process or product, or using it in connection with any submission to any governmental agency, including any patent office or regulatory authority, or the like, without the express written permission of Disclosing Party. Receiving Party shall disseminate Confidential Information only to those employees, independent contractors, advisors, or Affiliates, on a “need to know” basis in order for Receiving Party to carry out the Purpose, and Receiving Party warrants that all such employees, independent contractors, advisors, or Affiliates shall be advised of the confidential nature of the information received and that all such employees, independent contractors, advisors, Affiliates shall be bound in writing by obligations no less stringent than the terms set forth in this Agreement. Receiving Party agrees to notify Disclosing Party immediately in writing upon any loss, misuse, misappropriation, or other unauthorized disclosure of the Confidential Information of Disclosing Party that may come to Receiving Party’s attention.
(b) Degree of Care. Receiving Party shall hold the Confidential Information in strict confidence, and shall take all reasonable precautions to protect the Confidential Information at all times from unauthorized disclosure, publication, or use, including, without limitation, using at least the same degree of care as it employs to protect its own Confidential Information of like nature (but in any event no less than a reasonable degree of care), acting in a manner consistent with its obligations under this Agreement.
(c) Exclusions. The confidentiality, non-disclosure and non-use obligations of this Agreement shall not apply to Confidential Information disclosed to the Receiving Party that: (i) can be shown by written evidence to be in the Receiving Party’s possession before receipt of the Confidential Information from Disclosing Party; (ii) is independently developed by Receiving Party without the use of the Confidential Information as evidenced by written records; (iii) is or becomes publicly available through no fault of the Receiving Party; or (iv) is rightfully received by the Receiving Party on a non-confidential basis from a third party without breach of a duty of confidentiality to Disclosing Party. As used herein, the term “publicly available” shall mean readily accessible to the public in a written publication, and shall not mean information the substance of which must be pieced together from a number of different publications or other sources.
(d) Legally Required Disclosures. Nothing in this Agreement shall preclude Receiving Party from making any disclosure of Confidential Information that is required by applicable law or regulation or by a valid order of a court or other governmental body having jurisdiction, provided that Receiving Party uses best efforts to limit the scope of the required disclosure, provides notification to Disclosing Party of such requirement as soon as reasonably possible, and cooperates with Disclosing Party in seeking an appropriate protective order, confidential treatment, or similar remedy limiting the subsequent use and disclosure of any information required to be disclosed.
(e) No Obligation to Proceed. Nothing herein shall obligate either Party to proceed with any transaction between them, and each Party reserves the right, in its sole discretion, to terminate the discussions contemplated by this Agreement. This Agreement does not constitute a binding agreement to enter into any definitive agreement. Receiving Party understands that nothing herein requires the disclosure of any Confidential Information by Disclosing Party, which shall be disclosed, if at all, at the discretion of Disclosing Party.
(f) Return of Materials. Immediately upon (a) termination or expiration of this Agreement, (b) the decision by either Party not to enter into the business or scientific relationship contemplated above, or (c) a request by Disclosing Party at any time, Receiving Party will promptly turn over to Disclosing Party, or destroy, all Confidential Information of Disclosing Party and all documents, media, and other tangible materials containing any such Confidential Information and any and all extracts thereof. In the event that Receiving Party destroys Confidential Information, upon the destruction thereof, Receiving Party will issue to Disclosing Party a certificate as proof of compliance with Disclosing Party’s request. Notwithstanding this Section 4(f), the Receiving Party shall not be required to purge Confidential Information from its computer system’s historical back-up media, provided that such Confidential Information that is retained will remain subject to the terms of this Agreement.
(g) No Transfer or License. Nothing in this Agreement is intended to grant or transfer any right to Receiving Party under any patent, copyright or other intellectual property right of Disclosing Party, nor shall this Agreement grant or transfer to the Receiving Party any right in or to the Confidential Information except as expressly set forth herein. None of the Confidential Information which may be disclosed by Disclosing Party shall constitute any representation, warranty, assurance, guarantee or inducement by Disclosing Party to Receiving Party, including, without limitation, with respect to the non-infringement of intellectual property rights, or other rights of third persons.
(h) Both parties hereby acknowledges that in its review the other party’s Confidential Information it and its representatives will have access to material non-public information concerning this other party. Each Party acknowledges, that it and its representatives are aware, that the United States or other applicable securities laws prohibit any person, who has received from an issuer material non-public information relating to an issuer of securities, from purchasing or selling securities of such issuer or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities.
5. Miscellaneous.
(a) Use of Names; Publicity. Except as otherwise provided herein, nothing contained in this Agreement shall be construed as conferring any right on Receiving Party to use in any manner Disclosing Party’s name or any trade name or trademark. Receiving Party will make no public announcement or other public statement concerning the existence of this Agreement or the Parties’ respective performances hereunder without the prior written consent of Disclosing Party, which may be withheld in Disclosing Party’s sole and absolute discretion, except as necessary to comply with applicable law or regulations.
(b) Assignment. Receiving Party shall not transfer or assign any rights or obligations under this Agreement without the prior written consent of Disclosing Party, which consent may be given or withheld in Disclosing Party’s sole and absolute discretion.
(c) Severability. If any provision of this Agreement should be held invalid or unenforceable, the remaining provisions shall be unaffected and shall remain in full force and effect, to the extent consistent with the intent of the parties as evidenced by this Agreement as a whole.
(d) Waivers. All waivers must be in writing and signed by the Party to be charged. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
(e) Notices. All notices or reports permitted or required under this Agreement will be in writing and will be sent by personal delivery or reputable expedited delivery service with signature required. All such notices or reports will be deemed given upon receipt. Notices will be sent to the addresses set forth at the beginning of this Agreement, in this section, or such other addresses as either Party may specify in writing.
(f) Governing Law; Jurisdiction. This Agreement is made under and shall be construed according to the laws of the State of California without regard to any conflict of law principles that would provide for the application of the law of another jurisdiction. Any disputes under this Agreement may be brought in the state courts and the Federal courts located in the Northern District of California, and the parties hereby consent to the personal jurisdiction and exclusive venue of these courts.
(g) Injunctive Relief. Receiving Party agrees that disclosure of Confidential Information without the express written permission of Disclosing Party will cause Disclosing Party irreparable harm and that any breach or threatened breach of this Agreement by Receiving Party will entitle Disclosing Party to injunctive relief, in addition to any other legal and/or equitable remedies available to it. Notwithstanding clause (f), Disclosing Party may seek injunctive relief in any court of competent jurisdiction.
(h) Independence. The Parties do not intend that any agency or partnership relationship be created between them by this Agreement.
(i) Entire Agreement; Amendment. This Agreement constitutes the final, complete and exclusive agreement of the Parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements, communications, negotiations or understandings between the Parties with respect to the matters addressed herein. No modification of or amendment to this Agreement will be effective unless in writing and signed by all Parties.
(j) Counterparts. This Agreement may be executed in one or more counterparts (including by facsimile or .pdf), each of which shall constitute an original and all of which, when taken together, shall constitute one agreement.
IN WITNESS WHEREOF, the Parties have caused this Non-Disclosure Agreement to be executed as of the Effective Date.
PROSENSA HOLDING N.V. BIOMARIN PHARMACEUTICAL INC.
By: /s/ Luc Dochez By: /s/ Joshua Grass
Name: Luc Dochez Name: Joshua Grass
Title: Chief Business Officer Title: SVP, Business and Corporate Development
| Entailment |
620_nda-11 | 620_nda-11_0 | Q: Receiving Party shall not reverse engineer any objects which embody Disclosing Party's Confidential Information.
Text: Exhibit (e)(2)
September 19, 2017
Ultragenyx Pharmaceutical Inc.
60 Leveroni Court
Novato, California 94949
Attention: Karah Parschauer, General Counsel
Ladies and Gentlemen:
In connection with your consideration of a possible negotiated business transaction involving Dimension Therapeutics, Inc. (the “Company”) and you (the “Possible Transaction”), and in order to evaluate, consider, negotiate and/or implement the Possible Transaction, you have requested information concerning the Company that is confidential and proprietary. As a condition to being furnished such confidential and proprietary information, you agree to treat any such information, whether written or oral, concerning the Company or any of its subsidiaries, Affiliates (as such term is defined in Rule 12b-2 of the Securities Exchange Act of 1934, as amended) or divisions (whether prepared by the Company, its advisors or otherwise) that is furnished on or after the date hereof to you by or on behalf of the Company (herein collectively referred to as the “Evaluation Material”) in accordance with the provisions of this letter agreement and to take or abstain from taking certain other actions herein set forth. The term “Evaluation Material” includes, without limitation, all notes, analyses, compilations, spreadsheets, data, reports, studies, interpretations or other documents furnished by or on behalf of the Company to you or your Representatives (as defined below) or prepared by you or your Representatives, to the extent such materials reflect or are based upon the Evaluation Material. The term “Evaluation Material” does not include information that (a) is or becomes available to you on a nonconfidential basis from a source other than the Company or its Representatives; provided that such source is not known by you to be bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation to, the Company that prohibits such disclosure, (b) is or becomes available to the public other than as a result of a disclosure by you or your Representatives in violation of this letter agreement, (c) you can demonstrate is in your possession or the possession of your Representatives prior to receipt from the Company or its Representatives pursuant to this letter agreement, or (d) has been or is independently developed by you or your Representatives without the use of the Evaluation Material or in violation of the terms of this letter agreement. For purposes of this letter agreement the term “Representatives” shall include any person, its Affiliates and such person’s and its Affiliates’ respective directors, officers, employees, agents, attorneys, accountants, financial advisors and other professional representatives or advisors.
1. Non-Disclosure and Use of Evaluation Material. You hereby agree that the Evaluation Material will be kept confidential and used solely for the purpose of evaluating, considering,negotiating and/or implementing the Possible Transaction; provided, however, that the Evaluation Material may be disclosed (i) to any of your Representatives who need to know such information solely for the purpose of evaluating, considering,
negotiating and/or implementing a Possible Transaction, (ii) pursuant to an External Demand in accordance with paragraph 4 of this letter agreement and (iii) as the Company may otherwise consent in writing. All such Representatives shall (A) be informed by you of the confidential nature of the Evaluation Material, (B) agree to treat the Evaluation Material in accordance with this letter agreement, and (C) be advised of the terms of this letter agreement and directed to comply with the terms hereof to the same extent as if they were parties to this letter agreement. You agree to be responsible for any breaches of any of the provisions of this letter agreement by any of your Representatives (it being understood that such responsibility shall be in addition to and not by way of limitation of any right or remedy the Company may have against your Representatives with respect to such breach).
2. Securities Laws. You hereby acknowledge that you and your Representatives are aware, and will advise your Representatives, that the Evaluation Material may contain material, non-public information about the Company and that United States securities laws prohibit any person who has material, non-public information about a company from purchasing or selling any securities of the Company while in possession of such information.
3. Transaction Information. You will not, and will direct your Representatives not to, disclose to any person (except (i) to your Representatives who need to know such information for the purpose of evaluating, considering, negotiating and/or implementing a Possible Transaction and (ii) as the Company may otherwise consent in writing) either the fact that discussions or negotiations are taking place concerning the Possible Transaction or any of the terms, conditions or other facts with respect to the Possible Transaction, including the status thereof or that Evaluation Material has been made available to you (such information, “Transaction Information”); provided, however, that disclosure of Transaction Information pursuant to an External Demand shall be governed by paragraph 4 of this letter agreement; Without limiting the generality of the foregoing, you further agree that you will not share the Evaluation Material with or enter into any agreement, arrangement or understanding, or any discussions which would reasonably be expected to lead to an agreement, arrangement or understanding, with any other person, including other potential bidders and equity or debt financing sources (other than your Representatives as permitted above) regarding a Possible Transaction involving the Company without the prior written consent of the Company and only upon such person executing a confidentiality agreement in favor of the Company with terms and conditions substantially consistent with this letter agreement.
4. Required Disclosure. Notwithstanding anything to the contrary provided in this letter agreement, in the event you or any of your Representatives receive a request or are required by any law, rule, order, decree or regulation (including, without limitation, applicable securities or antitrust laws and applicable stock exchange rules) or any regulatory authority or legal, administrative or judicial process (including, without limitation, or by deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process or pursuant to a formal request from a regulatory examiner) (any such requested or required disclosure, an “External Demand”) to disclose all or any part of the Evaluation Material or the Transaction Information, you or your Representatives, as the case may be, agree, to the extent permissible and reasonably practicable, to (a) promptly notify the Company of the existence, terms and circumstances surrounding such External Demand or Permitted Disclosure and (b) assist the Company, at the Company’s request and expense, in seeking a protective order or other appropriate remedy to the extent available under the circumstances. In the event that such protective order or other remedy is not obtained or that the Company waives compliance with the provisions hereof, (i) you or your Representatives, as the case may be, may disclose only that portion of the Evaluation Material or Transaction Information which you or your Representatives are advised by counsel is required to be disclosed and to only those persons to whom you or your Representatives are advised by counsel are required to receive such information, and you or your Representatives shall exercise reasonable efforts to obtain assurance that confidential treatment will be accorded such Evaluation Material or Transaction Information, and (ii) you or your Representatives shall not be liable for such disclosure.
5. Communications and Requests. You agree that unless otherwise agreed to by the Company in writing, (a) all communications regarding the Possible Transaction, (b) requests for additional information regarding the Possible Transaction, (c) requests for facility tours or management meetings in connection with the Possible Transaction, and (d) discussions or questions regarding procedures, timing and terms of the Possible Transaction, will be submitted or directed exclusively to Andrew Weisenfeld ([email protected], 212-887-2102) of MTS Health Partners, L.P., the financial advisor to the Company or such other persons designated by the Company for such purpose.
6. Non-Solicit. You agree that, for a period of one year from the date of this letter agreement, neither you nor any of your Affiliates who are provided with Evaluation Material or become aware of your discussions regarding the Possible Transaction will, directly or indirectly, solicit for employment or employ (a) any individual serving as an executive officer of the Company, or (b) any employee of the Company or any of its subsidiaries with whom you have had substantial contact, or who is specifically identified to you (other than through a general roster of employees, general employee equity and compensation data or other employee data provided in due diligence that is general in nature), during your investigation of the Company and its business in connection with the Possible Transaction, in each case without obtaining the prior written consent of the Company; provided that you may (i) make general solicitations for employment not specifically directed at the Company or any of its subsidiaries or their respective employees and employ any person who responds to such solicitations, (ii) solicit and/or hire any person who contacts such party or its Affiliates on his or her own initiative without any initial direct or indirect solicitation or encouragement by such party or its Affiliates (other than as permitted by the preceding clause (i) and (iii) solicit and/or hire any person whose employment with the other party and its subsidiaries previously has been terminated for at least 90 days.
7. Standstill. You hereby acknowledge that, except as otherwise invited in writing by the Company’s Board of Directors or a Representative thereof or otherwise agreed in writing by the Company, for a period of one year from the date of this letter agreement (the “Standstill Period”), neither you nor any of your Affiliates who are provided with Evaluation Material will: (a) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase a substantial portion of the Company’s assets or businesses, or similar transactions involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company; (b) (i) acquire beneficial ownership of any voting securities (including in derivative form) of the Company (collectively, a transaction specified in (a)(i), (a)(ii) and (b)(i) involving a majority of the Company’s outstanding capital stock or consolidated assets, is referred to as a “Business Combination”), (ii) propose or seek, whether alone or in concert with others, any “solicitation” of “proxies” (as such terms are used in the rules of the Securities and Exchange Commission) or consents to vote any voting securities (including in derivative form) of the Company, (iii) nominate any person as a director of the Company, or (iv) propose any matter to be voted upon by the stockholders of the Company; (c) form, join or in any way participate in a third party “group” (as such term is used in the rules of the Securities and Exchange Commission) with respect to any voting securities (including in derivative form) of the Company or a Business Combination involving the Company; (d) request the Company (or any of its officers, directors or Representatives), directly or indirectly, to amend or waive any provision of this paragraph (including this sentence); or (e) take any action that would reasonably be expected to require the Company to make a public announcement regarding a potential Business Combination; provided, however, that nothing in this paragraph shall prohibit you from making a confidential proposal to the Company or the Company’s Board of Directors for a transaction involving a Business Combination (including a Possible Transaction) in a manner that would not reasonably be expected to require either party to make public disclosure with respect thereto.
Notwithstanding anything to the contrary in this letter agreement, the Standstill Period shall automatically terminate and cease to be of any further force and effect upon the earliest to occur of any of the following: (a) the Company publicly announcing its or its Board of Directors’ approval or recommendation of (A) any person or “group” (as such term is used in the rules of the Securities and Exchange Commission) commencing or publicly announcing an intention to commence a tender or exchange offer that, if consummated, would make such person or “group” (as such term is used in the rules of the Securities and Exchange Commission) (or any of their respective Affiliates) the beneficial owner (within the meaning of Section 13(d)(1) of the Exchange Act) of 50% or more of the Company’s equity securities, (B) an offer or proposal by any person or “group” (as such term is used in the rules of the Securities and Exchange Commission) which if effected would result in the acquisition (whether by merger, consolidation, recapitalization, liquidation or otherwise) by such person or “group” (as such term is used in the rules of the Securities and Exchange Commission) of 50% or more of such other party’s equity securities or a majority of the consolidated assets of the Company and its Affiliates (any such transaction, an “Acquisition Transaction”), or (C) any Acquisition Transaction, or (b) the Company entering into or publicly announcing its intention to enter into a definitive agreement with a third party to effectuate an Acquisition Transaction. Notwithstanding anything to the contrary in this letter agreement, you may own or acquire, or propose to acquire, any assets or securities of the Company in connection with a transaction subject to approval pursuant to proceedings under the United States Bankruptcy Code.
8. No Representation of Accuracy. Although the Company has endeavored to include in the Evaluation Material information which it believes to be relevant for the purpose of your investigation, you understand that none of the Company or its Representatives have made or make in this letter agreement any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material. You agree that none of the Company or its Representatives shall have any liability to you or any of your Representatives pursuant to this letter agreement resulting from the selection, use or content of the Evaluation Material by you or your Affiliates or Representatives. You further agree that you and your Representatives will be entitled to rely solely on such representations and warranties as may be included in a definitive agreement relating to a Possible Transaction, subject to such limitations and restrictions as may be contained therein.
9. Destruction or Return of Evaluation Material. You may determine not to pursue a Possible Transaction at any time and for any, or no, reason, and will promptly inform the Company at any time such a decision is made. Upon the Company’s demand, you shall, at your sole option, either promptly (a) destroy the Evaluation Material and any copies thereof, or (b) return to the Company all Evaluation Material and any copies thereof, and, in either case, confirm in writing to the Company that all such material has been destroyed or returned, as applicable, in compliance with this letter agreement. It is understood that information in an intangible or electronic format containing Evaluation Material cannot be removed, erased or otherwise deleted from archival systems (also known as “computer or system back-ups”) but that such information will continue to be protected under the confidentiality requirements and non-use limitations contained in this letter agreement, and you and your Representatives shall continue to be bound by the obligations of confidentiality and non-use hereunder. Notwithstanding the foregoing, you and your Representatives may retain one copy of any work product prepared by you or them that contains Evaluation Material to the extent necessary or advisable pursuant to applicable legal or regulatory requirements, professional standards or reasonable business practice; provided that you and such Representatives shall continue to be bound by the obligations of confidentiality and non-use hereunder with respect to such work product.
10. Injunctive Relief. You acknowledge and agree that money damages may not be a sufficient remedy for any breach of this letter agreement by you or your Representatives and that the Company shall be entitled to seek equitable relief, including injunction and specific performance, as a remedy for any such breach, without proof of damages, and each party further agrees to waive, and shall cause its Representatives to waive, any requirement for the securing or posting of any bond in connection with any such remedy. Such remedies shall not be the exclusive remedies for a breach of this letter agreement, but will be in addition to all other remedies available at law or in equity.
11. Definitive Agreement. You agree that unless and until a definitive agreement between the Company and you with respect to the Possible Transaction (a “Definitive Agreement”) has been executed and delivered, neither the Company nor you will be under any legal obligation of any kind whatsoever with respect to a Possible Transaction by virtue of this letter agreement or any other written or oral expression except, in the case of this letter agreement, for the matters specifically agreed to herein. In addition, you hereby waive, in advance, any claims (including, without limitation, breach of contract) in connection with any Possible Transaction other than claims under any Definitive Agreement relating to a Possible Transaction or under this letter agreement. For purposes of this letter agreement, the term “Definitive Agreement” does not include an executed letter of intent or any other preliminary written agreement, nor does it include any oral acceptance of an offer or bid by you. The agreement set forth in this paragraph may be modified or waived only by a separate writing by the Company and you expressly so modifying or waiving such agreement.
12. Process Agreements. You acknowledge that (a) the Company shall be free to conduct a process for a Possible Transaction as it in its sole discretion shall determine (including, without limitation, negotiating with any other prospective buyers and entering into a definitive agreement without prior notice to you or to any other person), and (b) any procedures relating to such Possible Transaction may be implemented or changed at any time prior to entry into a definitive agreement relating to such Possible Transaction without notice to you or any other person. The Company reserves the right at any time, in its sole discretion, for any reason or no reason, to reject any and all proposals made by you or any of your Representatives with regard to the Possible Transaction, to terminate discussions and negotiations with you, and to refuse to provide any further access to Evaluation Material. You further acknowledge that the Company has entered into an Agreement and Plan of Merger with REGENXBIO, Inc. and Muddy Charles Acquisition Corporation, dated August 24, 2017 (the “Merger Agreement”), and that you have read the Merger Agreement in its entirety, including Sections 5.3 and 5.4 therein. You agree that nothing in this letter agreement shall be deemed to restrict the Company’s ability to comply with the provisions of the Merger Agreement, including Sections 5.3 and 5.4 therein, and in the case of any inconsistency between this letter agreement and the Merger Agreement, the terms of the Merger Agreement shall control with respect to any action by the Company.
13. No Waiver. No failure or delay by the Company or any of its Representatives in exercising any right, power or privilege under this letter agreement shall operate as a waiver thereof, and no amendment, modification or waiver hereof shall be effective, unless in writing and signed by an officer or other authorized person of the Company hereto.
14. Severability. The illegality, invalidity or unenforceability of any provision hereof under the laws of any jurisdiction shall not affect its legality, validity or enforceability under the laws of any other jurisdiction, nor the legality, validity or enforceability of any other provision.
15. Governing Law and Forum. This letter agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware. The parties hereby irrevocably and unconditionally consent to the exclusive jurisdiction of the Chancery Courts in the State of Delaware and the United States District Court for the District of the State of Delaware for any action, suit or proceeding arising out of or relating to this letter agreement or the Possible Transaction, and agree not to commence any action, suit or proceeding related thereto except in such courts.
16. Counterparts. This letter agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute the same agreement. One or more counterparts of this letter agreement may be delivered by facsimile or pdf electronic transmission, with the intention that they shall have the same effect as an original counterpart hereof.
17. Term. This letter agreement shall terminate on the date that is two years following the date hereof.
Very truly yours,
Dimension Therapeutics, Inc.
By: /s/ Annalisa Jenkins, MBBS, FRCP
Name: Annalisa Jenkins, MBBS, FRCP
Title: President & Chief Executive Officer
Confirmed and Agreed to:
Ultragenyx Pharmaceutical Inc.
By: /s/ Shalini Sharp
Name: Shalini Sharp
Title: Chief Financial Officer
Date: September 19, 2017
| Not mentioned |
620_nda-16 | 620_nda-16_0 | Q: Receiving Party shall destroy or return some Confidential Information upon the termination of Agreement.
Text: Exhibit (e)(2)
September 19, 2017
Ultragenyx Pharmaceutical Inc.
60 Leveroni Court
Novato, California 94949
Attention: Karah Parschauer, General Counsel
Ladies and Gentlemen:
In connection with your consideration of a possible negotiated business transaction involving Dimension Therapeutics, Inc. (the “Company”) and you (the “Possible Transaction”), and in order to evaluate, consider, negotiate and/or implement the Possible Transaction, you have requested information concerning the Company that is confidential and proprietary. As a condition to being furnished such confidential and proprietary information, you agree to treat any such information, whether written or oral, concerning the Company or any of its subsidiaries, Affiliates (as such term is defined in Rule 12b-2 of the Securities Exchange Act of 1934, as amended) or divisions (whether prepared by the Company, its advisors or otherwise) that is furnished on or after the date hereof to you by or on behalf of the Company (herein collectively referred to as the “Evaluation Material”) in accordance with the provisions of this letter agreement and to take or abstain from taking certain other actions herein set forth. The term “Evaluation Material” includes, without limitation, all notes, analyses, compilations, spreadsheets, data, reports, studies, interpretations or other documents furnished by or on behalf of the Company to you or your Representatives (as defined below) or prepared by you or your Representatives, to the extent such materials reflect or are based upon the Evaluation Material. The term “Evaluation Material” does not include information that (a) is or becomes available to you on a nonconfidential basis from a source other than the Company or its Representatives; provided that such source is not known by you to be bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation to, the Company that prohibits such disclosure, (b) is or becomes available to the public other than as a result of a disclosure by you or your Representatives in violation of this letter agreement, (c) you can demonstrate is in your possession or the possession of your Representatives prior to receipt from the Company or its Representatives pursuant to this letter agreement, or (d) has been or is independently developed by you or your Representatives without the use of the Evaluation Material or in violation of the terms of this letter agreement. For purposes of this letter agreement the term “Representatives” shall include any person, its Affiliates and such person’s and its Affiliates’ respective directors, officers, employees, agents, attorneys, accountants, financial advisors and other professional representatives or advisors.
1. Non-Disclosure and Use of Evaluation Material. You hereby agree that the Evaluation Material will be kept confidential and used solely for the purpose of evaluating, considering,negotiating and/or implementing the Possible Transaction; provided, however, that the Evaluation Material may be disclosed (i) to any of your Representatives who need to know such information solely for the purpose of evaluating, considering,
negotiating and/or implementing a Possible Transaction, (ii) pursuant to an External Demand in accordance with paragraph 4 of this letter agreement and (iii) as the Company may otherwise consent in writing. All such Representatives shall (A) be informed by you of the confidential nature of the Evaluation Material, (B) agree to treat the Evaluation Material in accordance with this letter agreement, and (C) be advised of the terms of this letter agreement and directed to comply with the terms hereof to the same extent as if they were parties to this letter agreement. You agree to be responsible for any breaches of any of the provisions of this letter agreement by any of your Representatives (it being understood that such responsibility shall be in addition to and not by way of limitation of any right or remedy the Company may have against your Representatives with respect to such breach).
2. Securities Laws. You hereby acknowledge that you and your Representatives are aware, and will advise your Representatives, that the Evaluation Material may contain material, non-public information about the Company and that United States securities laws prohibit any person who has material, non-public information about a company from purchasing or selling any securities of the Company while in possession of such information.
3. Transaction Information. You will not, and will direct your Representatives not to, disclose to any person (except (i) to your Representatives who need to know such information for the purpose of evaluating, considering, negotiating and/or implementing a Possible Transaction and (ii) as the Company may otherwise consent in writing) either the fact that discussions or negotiations are taking place concerning the Possible Transaction or any of the terms, conditions or other facts with respect to the Possible Transaction, including the status thereof or that Evaluation Material has been made available to you (such information, “Transaction Information”); provided, however, that disclosure of Transaction Information pursuant to an External Demand shall be governed by paragraph 4 of this letter agreement; Without limiting the generality of the foregoing, you further agree that you will not share the Evaluation Material with or enter into any agreement, arrangement or understanding, or any discussions which would reasonably be expected to lead to an agreement, arrangement or understanding, with any other person, including other potential bidders and equity or debt financing sources (other than your Representatives as permitted above) regarding a Possible Transaction involving the Company without the prior written consent of the Company and only upon such person executing a confidentiality agreement in favor of the Company with terms and conditions substantially consistent with this letter agreement.
4. Required Disclosure. Notwithstanding anything to the contrary provided in this letter agreement, in the event you or any of your Representatives receive a request or are required by any law, rule, order, decree or regulation (including, without limitation, applicable securities or antitrust laws and applicable stock exchange rules) or any regulatory authority or legal, administrative or judicial process (including, without limitation, or by deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process or pursuant to a formal request from a regulatory examiner) (any such requested or required disclosure, an “External Demand”) to disclose all or any part of the Evaluation Material or the Transaction Information, you or your Representatives, as the case may be, agree, to the extent permissible and reasonably practicable, to (a) promptly notify the Company of the existence, terms and circumstances surrounding such External Demand or Permitted Disclosure and (b) assist the Company, at the Company’s request and expense, in seeking a protective order or other appropriate remedy to the extent available under the circumstances. In the event that such protective order or other remedy is not obtained or that the Company waives compliance with the provisions hereof, (i) you or your Representatives, as the case may be, may disclose only that portion of the Evaluation Material or Transaction Information which you or your Representatives are advised by counsel is required to be disclosed and to only those persons to whom you or your Representatives are advised by counsel are required to receive such information, and you or your Representatives shall exercise reasonable efforts to obtain assurance that confidential treatment will be accorded such Evaluation Material or Transaction Information, and (ii) you or your Representatives shall not be liable for such disclosure.
5. Communications and Requests. You agree that unless otherwise agreed to by the Company in writing, (a) all communications regarding the Possible Transaction, (b) requests for additional information regarding the Possible Transaction, (c) requests for facility tours or management meetings in connection with the Possible Transaction, and (d) discussions or questions regarding procedures, timing and terms of the Possible Transaction, will be submitted or directed exclusively to Andrew Weisenfeld ([email protected], 212-887-2102) of MTS Health Partners, L.P., the financial advisor to the Company or such other persons designated by the Company for such purpose.
6. Non-Solicit. You agree that, for a period of one year from the date of this letter agreement, neither you nor any of your Affiliates who are provided with Evaluation Material or become aware of your discussions regarding the Possible Transaction will, directly or indirectly, solicit for employment or employ (a) any individual serving as an executive officer of the Company, or (b) any employee of the Company or any of its subsidiaries with whom you have had substantial contact, or who is specifically identified to you (other than through a general roster of employees, general employee equity and compensation data or other employee data provided in due diligence that is general in nature), during your investigation of the Company and its business in connection with the Possible Transaction, in each case without obtaining the prior written consent of the Company; provided that you may (i) make general solicitations for employment not specifically directed at the Company or any of its subsidiaries or their respective employees and employ any person who responds to such solicitations, (ii) solicit and/or hire any person who contacts such party or its Affiliates on his or her own initiative without any initial direct or indirect solicitation or encouragement by such party or its Affiliates (other than as permitted by the preceding clause (i) and (iii) solicit and/or hire any person whose employment with the other party and its subsidiaries previously has been terminated for at least 90 days.
7. Standstill. You hereby acknowledge that, except as otherwise invited in writing by the Company’s Board of Directors or a Representative thereof or otherwise agreed in writing by the Company, for a period of one year from the date of this letter agreement (the “Standstill Period”), neither you nor any of your Affiliates who are provided with Evaluation Material will: (a) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase a substantial portion of the Company’s assets or businesses, or similar transactions involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company; (b) (i) acquire beneficial ownership of any voting securities (including in derivative form) of the Company (collectively, a transaction specified in (a)(i), (a)(ii) and (b)(i) involving a majority of the Company’s outstanding capital stock or consolidated assets, is referred to as a “Business Combination”), (ii) propose or seek, whether alone or in concert with others, any “solicitation” of “proxies” (as such terms are used in the rules of the Securities and Exchange Commission) or consents to vote any voting securities (including in derivative form) of the Company, (iii) nominate any person as a director of the Company, or (iv) propose any matter to be voted upon by the stockholders of the Company; (c) form, join or in any way participate in a third party “group” (as such term is used in the rules of the Securities and Exchange Commission) with respect to any voting securities (including in derivative form) of the Company or a Business Combination involving the Company; (d) request the Company (or any of its officers, directors or Representatives), directly or indirectly, to amend or waive any provision of this paragraph (including this sentence); or (e) take any action that would reasonably be expected to require the Company to make a public announcement regarding a potential Business Combination; provided, however, that nothing in this paragraph shall prohibit you from making a confidential proposal to the Company or the Company’s Board of Directors for a transaction involving a Business Combination (including a Possible Transaction) in a manner that would not reasonably be expected to require either party to make public disclosure with respect thereto.
Notwithstanding anything to the contrary in this letter agreement, the Standstill Period shall automatically terminate and cease to be of any further force and effect upon the earliest to occur of any of the following: (a) the Company publicly announcing its or its Board of Directors’ approval or recommendation of (A) any person or “group” (as such term is used in the rules of the Securities and Exchange Commission) commencing or publicly announcing an intention to commence a tender or exchange offer that, if consummated, would make such person or “group” (as such term is used in the rules of the Securities and Exchange Commission) (or any of their respective Affiliates) the beneficial owner (within the meaning of Section 13(d)(1) of the Exchange Act) of 50% or more of the Company’s equity securities, (B) an offer or proposal by any person or “group” (as such term is used in the rules of the Securities and Exchange Commission) which if effected would result in the acquisition (whether by merger, consolidation, recapitalization, liquidation or otherwise) by such person or “group” (as such term is used in the rules of the Securities and Exchange Commission) of 50% or more of such other party’s equity securities or a majority of the consolidated assets of the Company and its Affiliates (any such transaction, an “Acquisition Transaction”), or (C) any Acquisition Transaction, or (b) the Company entering into or publicly announcing its intention to enter into a definitive agreement with a third party to effectuate an Acquisition Transaction. Notwithstanding anything to the contrary in this letter agreement, you may own or acquire, or propose to acquire, any assets or securities of the Company in connection with a transaction subject to approval pursuant to proceedings under the United States Bankruptcy Code.
8. No Representation of Accuracy. Although the Company has endeavored to include in the Evaluation Material information which it believes to be relevant for the purpose of your investigation, you understand that none of the Company or its Representatives have made or make in this letter agreement any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material. You agree that none of the Company or its Representatives shall have any liability to you or any of your Representatives pursuant to this letter agreement resulting from the selection, use or content of the Evaluation Material by you or your Affiliates or Representatives. You further agree that you and your Representatives will be entitled to rely solely on such representations and warranties as may be included in a definitive agreement relating to a Possible Transaction, subject to such limitations and restrictions as may be contained therein.
9. Destruction or Return of Evaluation Material. You may determine not to pursue a Possible Transaction at any time and for any, or no, reason, and will promptly inform the Company at any time such a decision is made. Upon the Company’s demand, you shall, at your sole option, either promptly (a) destroy the Evaluation Material and any copies thereof, or (b) return to the Company all Evaluation Material and any copies thereof, and, in either case, confirm in writing to the Company that all such material has been destroyed or returned, as applicable, in compliance with this letter agreement. It is understood that information in an intangible or electronic format containing Evaluation Material cannot be removed, erased or otherwise deleted from archival systems (also known as “computer or system back-ups”) but that such information will continue to be protected under the confidentiality requirements and non-use limitations contained in this letter agreement, and you and your Representatives shall continue to be bound by the obligations of confidentiality and non-use hereunder. Notwithstanding the foregoing, you and your Representatives may retain one copy of any work product prepared by you or them that contains Evaluation Material to the extent necessary or advisable pursuant to applicable legal or regulatory requirements, professional standards or reasonable business practice; provided that you and such Representatives shall continue to be bound by the obligations of confidentiality and non-use hereunder with respect to such work product.
10. Injunctive Relief. You acknowledge and agree that money damages may not be a sufficient remedy for any breach of this letter agreement by you or your Representatives and that the Company shall be entitled to seek equitable relief, including injunction and specific performance, as a remedy for any such breach, without proof of damages, and each party further agrees to waive, and shall cause its Representatives to waive, any requirement for the securing or posting of any bond in connection with any such remedy. Such remedies shall not be the exclusive remedies for a breach of this letter agreement, but will be in addition to all other remedies available at law or in equity.
11. Definitive Agreement. You agree that unless and until a definitive agreement between the Company and you with respect to the Possible Transaction (a “Definitive Agreement”) has been executed and delivered, neither the Company nor you will be under any legal obligation of any kind whatsoever with respect to a Possible Transaction by virtue of this letter agreement or any other written or oral expression except, in the case of this letter agreement, for the matters specifically agreed to herein. In addition, you hereby waive, in advance, any claims (including, without limitation, breach of contract) in connection with any Possible Transaction other than claims under any Definitive Agreement relating to a Possible Transaction or under this letter agreement. For purposes of this letter agreement, the term “Definitive Agreement” does not include an executed letter of intent or any other preliminary written agreement, nor does it include any oral acceptance of an offer or bid by you. The agreement set forth in this paragraph may be modified or waived only by a separate writing by the Company and you expressly so modifying or waiving such agreement.
12. Process Agreements. You acknowledge that (a) the Company shall be free to conduct a process for a Possible Transaction as it in its sole discretion shall determine (including, without limitation, negotiating with any other prospective buyers and entering into a definitive agreement without prior notice to you or to any other person), and (b) any procedures relating to such Possible Transaction may be implemented or changed at any time prior to entry into a definitive agreement relating to such Possible Transaction without notice to you or any other person. The Company reserves the right at any time, in its sole discretion, for any reason or no reason, to reject any and all proposals made by you or any of your Representatives with regard to the Possible Transaction, to terminate discussions and negotiations with you, and to refuse to provide any further access to Evaluation Material. You further acknowledge that the Company has entered into an Agreement and Plan of Merger with REGENXBIO, Inc. and Muddy Charles Acquisition Corporation, dated August 24, 2017 (the “Merger Agreement”), and that you have read the Merger Agreement in its entirety, including Sections 5.3 and 5.4 therein. You agree that nothing in this letter agreement shall be deemed to restrict the Company’s ability to comply with the provisions of the Merger Agreement, including Sections 5.3 and 5.4 therein, and in the case of any inconsistency between this letter agreement and the Merger Agreement, the terms of the Merger Agreement shall control with respect to any action by the Company.
13. No Waiver. No failure or delay by the Company or any of its Representatives in exercising any right, power or privilege under this letter agreement shall operate as a waiver thereof, and no amendment, modification or waiver hereof shall be effective, unless in writing and signed by an officer or other authorized person of the Company hereto.
14. Severability. The illegality, invalidity or unenforceability of any provision hereof under the laws of any jurisdiction shall not affect its legality, validity or enforceability under the laws of any other jurisdiction, nor the legality, validity or enforceability of any other provision.
15. Governing Law and Forum. This letter agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware. The parties hereby irrevocably and unconditionally consent to the exclusive jurisdiction of the Chancery Courts in the State of Delaware and the United States District Court for the District of the State of Delaware for any action, suit or proceeding arising out of or relating to this letter agreement or the Possible Transaction, and agree not to commence any action, suit or proceeding related thereto except in such courts.
16. Counterparts. This letter agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute the same agreement. One or more counterparts of this letter agreement may be delivered by facsimile or pdf electronic transmission, with the intention that they shall have the same effect as an original counterpart hereof.
17. Term. This letter agreement shall terminate on the date that is two years following the date hereof.
Very truly yours,
Dimension Therapeutics, Inc.
By: /s/ Annalisa Jenkins, MBBS, FRCP
Name: Annalisa Jenkins, MBBS, FRCP
Title: President & Chief Executive Officer
Confirmed and Agreed to:
Ultragenyx Pharmaceutical Inc.
By: /s/ Shalini Sharp
Name: Shalini Sharp
Title: Chief Financial Officer
Date: September 19, 2017
| Not mentioned |
620_nda-15 | 620_nda-15_0 | Q: Agreement shall not grant Receiving Party any right to Confidential Information.
Text: Exhibit (e)(2)
September 19, 2017
Ultragenyx Pharmaceutical Inc.
60 Leveroni Court
Novato, California 94949
Attention: Karah Parschauer, General Counsel
Ladies and Gentlemen:
In connection with your consideration of a possible negotiated business transaction involving Dimension Therapeutics, Inc. (the “Company”) and you (the “Possible Transaction”), and in order to evaluate, consider, negotiate and/or implement the Possible Transaction, you have requested information concerning the Company that is confidential and proprietary. As a condition to being furnished such confidential and proprietary information, you agree to treat any such information, whether written or oral, concerning the Company or any of its subsidiaries, Affiliates (as such term is defined in Rule 12b-2 of the Securities Exchange Act of 1934, as amended) or divisions (whether prepared by the Company, its advisors or otherwise) that is furnished on or after the date hereof to you by or on behalf of the Company (herein collectively referred to as the “Evaluation Material”) in accordance with the provisions of this letter agreement and to take or abstain from taking certain other actions herein set forth. The term “Evaluation Material” includes, without limitation, all notes, analyses, compilations, spreadsheets, data, reports, studies, interpretations or other documents furnished by or on behalf of the Company to you or your Representatives (as defined below) or prepared by you or your Representatives, to the extent such materials reflect or are based upon the Evaluation Material. The term “Evaluation Material” does not include information that (a) is or becomes available to you on a nonconfidential basis from a source other than the Company or its Representatives; provided that such source is not known by you to be bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation to, the Company that prohibits such disclosure, (b) is or becomes available to the public other than as a result of a disclosure by you or your Representatives in violation of this letter agreement, (c) you can demonstrate is in your possession or the possession of your Representatives prior to receipt from the Company or its Representatives pursuant to this letter agreement, or (d) has been or is independently developed by you or your Representatives without the use of the Evaluation Material or in violation of the terms of this letter agreement. For purposes of this letter agreement the term “Representatives” shall include any person, its Affiliates and such person’s and its Affiliates’ respective directors, officers, employees, agents, attorneys, accountants, financial advisors and other professional representatives or advisors.
1. Non-Disclosure and Use of Evaluation Material. You hereby agree that the Evaluation Material will be kept confidential and used solely for the purpose of evaluating, considering,negotiating and/or implementing the Possible Transaction; provided, however, that the Evaluation Material may be disclosed (i) to any of your Representatives who need to know such information solely for the purpose of evaluating, considering,
negotiating and/or implementing a Possible Transaction, (ii) pursuant to an External Demand in accordance with paragraph 4 of this letter agreement and (iii) as the Company may otherwise consent in writing. All such Representatives shall (A) be informed by you of the confidential nature of the Evaluation Material, (B) agree to treat the Evaluation Material in accordance with this letter agreement, and (C) be advised of the terms of this letter agreement and directed to comply with the terms hereof to the same extent as if they were parties to this letter agreement. You agree to be responsible for any breaches of any of the provisions of this letter agreement by any of your Representatives (it being understood that such responsibility shall be in addition to and not by way of limitation of any right or remedy the Company may have against your Representatives with respect to such breach).
2. Securities Laws. You hereby acknowledge that you and your Representatives are aware, and will advise your Representatives, that the Evaluation Material may contain material, non-public information about the Company and that United States securities laws prohibit any person who has material, non-public information about a company from purchasing or selling any securities of the Company while in possession of such information.
3. Transaction Information. You will not, and will direct your Representatives not to, disclose to any person (except (i) to your Representatives who need to know such information for the purpose of evaluating, considering, negotiating and/or implementing a Possible Transaction and (ii) as the Company may otherwise consent in writing) either the fact that discussions or negotiations are taking place concerning the Possible Transaction or any of the terms, conditions or other facts with respect to the Possible Transaction, including the status thereof or that Evaluation Material has been made available to you (such information, “Transaction Information”); provided, however, that disclosure of Transaction Information pursuant to an External Demand shall be governed by paragraph 4 of this letter agreement; Without limiting the generality of the foregoing, you further agree that you will not share the Evaluation Material with or enter into any agreement, arrangement or understanding, or any discussions which would reasonably be expected to lead to an agreement, arrangement or understanding, with any other person, including other potential bidders and equity or debt financing sources (other than your Representatives as permitted above) regarding a Possible Transaction involving the Company without the prior written consent of the Company and only upon such person executing a confidentiality agreement in favor of the Company with terms and conditions substantially consistent with this letter agreement.
4. Required Disclosure. Notwithstanding anything to the contrary provided in this letter agreement, in the event you or any of your Representatives receive a request or are required by any law, rule, order, decree or regulation (including, without limitation, applicable securities or antitrust laws and applicable stock exchange rules) or any regulatory authority or legal, administrative or judicial process (including, without limitation, or by deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process or pursuant to a formal request from a regulatory examiner) (any such requested or required disclosure, an “External Demand”) to disclose all or any part of the Evaluation Material or the Transaction Information, you or your Representatives, as the case may be, agree, to the extent permissible and reasonably practicable, to (a) promptly notify the Company of the existence, terms and circumstances surrounding such External Demand or Permitted Disclosure and (b) assist the Company, at the Company’s request and expense, in seeking a protective order or other appropriate remedy to the extent available under the circumstances. In the event that such protective order or other remedy is not obtained or that the Company waives compliance with the provisions hereof, (i) you or your Representatives, as the case may be, may disclose only that portion of the Evaluation Material or Transaction Information which you or your Representatives are advised by counsel is required to be disclosed and to only those persons to whom you or your Representatives are advised by counsel are required to receive such information, and you or your Representatives shall exercise reasonable efforts to obtain assurance that confidential treatment will be accorded such Evaluation Material or Transaction Information, and (ii) you or your Representatives shall not be liable for such disclosure.
5. Communications and Requests. You agree that unless otherwise agreed to by the Company in writing, (a) all communications regarding the Possible Transaction, (b) requests for additional information regarding the Possible Transaction, (c) requests for facility tours or management meetings in connection with the Possible Transaction, and (d) discussions or questions regarding procedures, timing and terms of the Possible Transaction, will be submitted or directed exclusively to Andrew Weisenfeld ([email protected], 212-887-2102) of MTS Health Partners, L.P., the financial advisor to the Company or such other persons designated by the Company for such purpose.
6. Non-Solicit. You agree that, for a period of one year from the date of this letter agreement, neither you nor any of your Affiliates who are provided with Evaluation Material or become aware of your discussions regarding the Possible Transaction will, directly or indirectly, solicit for employment or employ (a) any individual serving as an executive officer of the Company, or (b) any employee of the Company or any of its subsidiaries with whom you have had substantial contact, or who is specifically identified to you (other than through a general roster of employees, general employee equity and compensation data or other employee data provided in due diligence that is general in nature), during your investigation of the Company and its business in connection with the Possible Transaction, in each case without obtaining the prior written consent of the Company; provided that you may (i) make general solicitations for employment not specifically directed at the Company or any of its subsidiaries or their respective employees and employ any person who responds to such solicitations, (ii) solicit and/or hire any person who contacts such party or its Affiliates on his or her own initiative without any initial direct or indirect solicitation or encouragement by such party or its Affiliates (other than as permitted by the preceding clause (i) and (iii) solicit and/or hire any person whose employment with the other party and its subsidiaries previously has been terminated for at least 90 days.
7. Standstill. You hereby acknowledge that, except as otherwise invited in writing by the Company’s Board of Directors or a Representative thereof or otherwise agreed in writing by the Company, for a period of one year from the date of this letter agreement (the “Standstill Period”), neither you nor any of your Affiliates who are provided with Evaluation Material will: (a) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase a substantial portion of the Company’s assets or businesses, or similar transactions involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company; (b) (i) acquire beneficial ownership of any voting securities (including in derivative form) of the Company (collectively, a transaction specified in (a)(i), (a)(ii) and (b)(i) involving a majority of the Company’s outstanding capital stock or consolidated assets, is referred to as a “Business Combination”), (ii) propose or seek, whether alone or in concert with others, any “solicitation” of “proxies” (as such terms are used in the rules of the Securities and Exchange Commission) or consents to vote any voting securities (including in derivative form) of the Company, (iii) nominate any person as a director of the Company, or (iv) propose any matter to be voted upon by the stockholders of the Company; (c) form, join or in any way participate in a third party “group” (as such term is used in the rules of the Securities and Exchange Commission) with respect to any voting securities (including in derivative form) of the Company or a Business Combination involving the Company; (d) request the Company (or any of its officers, directors or Representatives), directly or indirectly, to amend or waive any provision of this paragraph (including this sentence); or (e) take any action that would reasonably be expected to require the Company to make a public announcement regarding a potential Business Combination; provided, however, that nothing in this paragraph shall prohibit you from making a confidential proposal to the Company or the Company’s Board of Directors for a transaction involving a Business Combination (including a Possible Transaction) in a manner that would not reasonably be expected to require either party to make public disclosure with respect thereto.
Notwithstanding anything to the contrary in this letter agreement, the Standstill Period shall automatically terminate and cease to be of any further force and effect upon the earliest to occur of any of the following: (a) the Company publicly announcing its or its Board of Directors’ approval or recommendation of (A) any person or “group” (as such term is used in the rules of the Securities and Exchange Commission) commencing or publicly announcing an intention to commence a tender or exchange offer that, if consummated, would make such person or “group” (as such term is used in the rules of the Securities and Exchange Commission) (or any of their respective Affiliates) the beneficial owner (within the meaning of Section 13(d)(1) of the Exchange Act) of 50% or more of the Company’s equity securities, (B) an offer or proposal by any person or “group” (as such term is used in the rules of the Securities and Exchange Commission) which if effected would result in the acquisition (whether by merger, consolidation, recapitalization, liquidation or otherwise) by such person or “group” (as such term is used in the rules of the Securities and Exchange Commission) of 50% or more of such other party’s equity securities or a majority of the consolidated assets of the Company and its Affiliates (any such transaction, an “Acquisition Transaction”), or (C) any Acquisition Transaction, or (b) the Company entering into or publicly announcing its intention to enter into a definitive agreement with a third party to effectuate an Acquisition Transaction. Notwithstanding anything to the contrary in this letter agreement, you may own or acquire, or propose to acquire, any assets or securities of the Company in connection with a transaction subject to approval pursuant to proceedings under the United States Bankruptcy Code.
8. No Representation of Accuracy. Although the Company has endeavored to include in the Evaluation Material information which it believes to be relevant for the purpose of your investigation, you understand that none of the Company or its Representatives have made or make in this letter agreement any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material. You agree that none of the Company or its Representatives shall have any liability to you or any of your Representatives pursuant to this letter agreement resulting from the selection, use or content of the Evaluation Material by you or your Affiliates or Representatives. You further agree that you and your Representatives will be entitled to rely solely on such representations and warranties as may be included in a definitive agreement relating to a Possible Transaction, subject to such limitations and restrictions as may be contained therein.
9. Destruction or Return of Evaluation Material. You may determine not to pursue a Possible Transaction at any time and for any, or no, reason, and will promptly inform the Company at any time such a decision is made. Upon the Company’s demand, you shall, at your sole option, either promptly (a) destroy the Evaluation Material and any copies thereof, or (b) return to the Company all Evaluation Material and any copies thereof, and, in either case, confirm in writing to the Company that all such material has been destroyed or returned, as applicable, in compliance with this letter agreement. It is understood that information in an intangible or electronic format containing Evaluation Material cannot be removed, erased or otherwise deleted from archival systems (also known as “computer or system back-ups”) but that such information will continue to be protected under the confidentiality requirements and non-use limitations contained in this letter agreement, and you and your Representatives shall continue to be bound by the obligations of confidentiality and non-use hereunder. Notwithstanding the foregoing, you and your Representatives may retain one copy of any work product prepared by you or them that contains Evaluation Material to the extent necessary or advisable pursuant to applicable legal or regulatory requirements, professional standards or reasonable business practice; provided that you and such Representatives shall continue to be bound by the obligations of confidentiality and non-use hereunder with respect to such work product.
10. Injunctive Relief. You acknowledge and agree that money damages may not be a sufficient remedy for any breach of this letter agreement by you or your Representatives and that the Company shall be entitled to seek equitable relief, including injunction and specific performance, as a remedy for any such breach, without proof of damages, and each party further agrees to waive, and shall cause its Representatives to waive, any requirement for the securing or posting of any bond in connection with any such remedy. Such remedies shall not be the exclusive remedies for a breach of this letter agreement, but will be in addition to all other remedies available at law or in equity.
11. Definitive Agreement. You agree that unless and until a definitive agreement between the Company and you with respect to the Possible Transaction (a “Definitive Agreement”) has been executed and delivered, neither the Company nor you will be under any legal obligation of any kind whatsoever with respect to a Possible Transaction by virtue of this letter agreement or any other written or oral expression except, in the case of this letter agreement, for the matters specifically agreed to herein. In addition, you hereby waive, in advance, any claims (including, without limitation, breach of contract) in connection with any Possible Transaction other than claims under any Definitive Agreement relating to a Possible Transaction or under this letter agreement. For purposes of this letter agreement, the term “Definitive Agreement” does not include an executed letter of intent or any other preliminary written agreement, nor does it include any oral acceptance of an offer or bid by you. The agreement set forth in this paragraph may be modified or waived only by a separate writing by the Company and you expressly so modifying or waiving such agreement.
12. Process Agreements. You acknowledge that (a) the Company shall be free to conduct a process for a Possible Transaction as it in its sole discretion shall determine (including, without limitation, negotiating with any other prospective buyers and entering into a definitive agreement without prior notice to you or to any other person), and (b) any procedures relating to such Possible Transaction may be implemented or changed at any time prior to entry into a definitive agreement relating to such Possible Transaction without notice to you or any other person. The Company reserves the right at any time, in its sole discretion, for any reason or no reason, to reject any and all proposals made by you or any of your Representatives with regard to the Possible Transaction, to terminate discussions and negotiations with you, and to refuse to provide any further access to Evaluation Material. You further acknowledge that the Company has entered into an Agreement and Plan of Merger with REGENXBIO, Inc. and Muddy Charles Acquisition Corporation, dated August 24, 2017 (the “Merger Agreement”), and that you have read the Merger Agreement in its entirety, including Sections 5.3 and 5.4 therein. You agree that nothing in this letter agreement shall be deemed to restrict the Company’s ability to comply with the provisions of the Merger Agreement, including Sections 5.3 and 5.4 therein, and in the case of any inconsistency between this letter agreement and the Merger Agreement, the terms of the Merger Agreement shall control with respect to any action by the Company.
13. No Waiver. No failure or delay by the Company or any of its Representatives in exercising any right, power or privilege under this letter agreement shall operate as a waiver thereof, and no amendment, modification or waiver hereof shall be effective, unless in writing and signed by an officer or other authorized person of the Company hereto.
14. Severability. The illegality, invalidity or unenforceability of any provision hereof under the laws of any jurisdiction shall not affect its legality, validity or enforceability under the laws of any other jurisdiction, nor the legality, validity or enforceability of any other provision.
15. Governing Law and Forum. This letter agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware. The parties hereby irrevocably and unconditionally consent to the exclusive jurisdiction of the Chancery Courts in the State of Delaware and the United States District Court for the District of the State of Delaware for any action, suit or proceeding arising out of or relating to this letter agreement or the Possible Transaction, and agree not to commence any action, suit or proceeding related thereto except in such courts.
16. Counterparts. This letter agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute the same agreement. One or more counterparts of this letter agreement may be delivered by facsimile or pdf electronic transmission, with the intention that they shall have the same effect as an original counterpart hereof.
17. Term. This letter agreement shall terminate on the date that is two years following the date hereof.
Very truly yours,
Dimension Therapeutics, Inc.
By: /s/ Annalisa Jenkins, MBBS, FRCP
Name: Annalisa Jenkins, MBBS, FRCP
Title: President & Chief Executive Officer
Confirmed and Agreed to:
Ultragenyx Pharmaceutical Inc.
By: /s/ Shalini Sharp
Name: Shalini Sharp
Title: Chief Financial Officer
Date: September 19, 2017
| Not mentioned |
620_nda-10 | 620_nda-10_0 | Q: Receiving Party shall not disclose the fact that Agreement was agreed or negotiated.
Text: Exhibit (e)(2)
September 19, 2017
Ultragenyx Pharmaceutical Inc.
60 Leveroni Court
Novato, California 94949
Attention: Karah Parschauer, General Counsel
Ladies and Gentlemen:
In connection with your consideration of a possible negotiated business transaction involving Dimension Therapeutics, Inc. (the “Company”) and you (the “Possible Transaction”), and in order to evaluate, consider, negotiate and/or implement the Possible Transaction, you have requested information concerning the Company that is confidential and proprietary. As a condition to being furnished such confidential and proprietary information, you agree to treat any such information, whether written or oral, concerning the Company or any of its subsidiaries, Affiliates (as such term is defined in Rule 12b-2 of the Securities Exchange Act of 1934, as amended) or divisions (whether prepared by the Company, its advisors or otherwise) that is furnished on or after the date hereof to you by or on behalf of the Company (herein collectively referred to as the “Evaluation Material”) in accordance with the provisions of this letter agreement and to take or abstain from taking certain other actions herein set forth. The term “Evaluation Material” includes, without limitation, all notes, analyses, compilations, spreadsheets, data, reports, studies, interpretations or other documents furnished by or on behalf of the Company to you or your Representatives (as defined below) or prepared by you or your Representatives, to the extent such materials reflect or are based upon the Evaluation Material. The term “Evaluation Material” does not include information that (a) is or becomes available to you on a nonconfidential basis from a source other than the Company or its Representatives; provided that such source is not known by you to be bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation to, the Company that prohibits such disclosure, (b) is or becomes available to the public other than as a result of a disclosure by you or your Representatives in violation of this letter agreement, (c) you can demonstrate is in your possession or the possession of your Representatives prior to receipt from the Company or its Representatives pursuant to this letter agreement, or (d) has been or is independently developed by you or your Representatives without the use of the Evaluation Material or in violation of the terms of this letter agreement. For purposes of this letter agreement the term “Representatives” shall include any person, its Affiliates and such person’s and its Affiliates’ respective directors, officers, employees, agents, attorneys, accountants, financial advisors and other professional representatives or advisors.
1. Non-Disclosure and Use of Evaluation Material. You hereby agree that the Evaluation Material will be kept confidential and used solely for the purpose of evaluating, considering,negotiating and/or implementing the Possible Transaction; provided, however, that the Evaluation Material may be disclosed (i) to any of your Representatives who need to know such information solely for the purpose of evaluating, considering,
negotiating and/or implementing a Possible Transaction, (ii) pursuant to an External Demand in accordance with paragraph 4 of this letter agreement and (iii) as the Company may otherwise consent in writing. All such Representatives shall (A) be informed by you of the confidential nature of the Evaluation Material, (B) agree to treat the Evaluation Material in accordance with this letter agreement, and (C) be advised of the terms of this letter agreement and directed to comply with the terms hereof to the same extent as if they were parties to this letter agreement. You agree to be responsible for any breaches of any of the provisions of this letter agreement by any of your Representatives (it being understood that such responsibility shall be in addition to and not by way of limitation of any right or remedy the Company may have against your Representatives with respect to such breach).
2. Securities Laws. You hereby acknowledge that you and your Representatives are aware, and will advise your Representatives, that the Evaluation Material may contain material, non-public information about the Company and that United States securities laws prohibit any person who has material, non-public information about a company from purchasing or selling any securities of the Company while in possession of such information.
3. Transaction Information. You will not, and will direct your Representatives not to, disclose to any person (except (i) to your Representatives who need to know such information for the purpose of evaluating, considering, negotiating and/or implementing a Possible Transaction and (ii) as the Company may otherwise consent in writing) either the fact that discussions or negotiations are taking place concerning the Possible Transaction or any of the terms, conditions or other facts with respect to the Possible Transaction, including the status thereof or that Evaluation Material has been made available to you (such information, “Transaction Information”); provided, however, that disclosure of Transaction Information pursuant to an External Demand shall be governed by paragraph 4 of this letter agreement; Without limiting the generality of the foregoing, you further agree that you will not share the Evaluation Material with or enter into any agreement, arrangement or understanding, or any discussions which would reasonably be expected to lead to an agreement, arrangement or understanding, with any other person, including other potential bidders and equity or debt financing sources (other than your Representatives as permitted above) regarding a Possible Transaction involving the Company without the prior written consent of the Company and only upon such person executing a confidentiality agreement in favor of the Company with terms and conditions substantially consistent with this letter agreement.
4. Required Disclosure. Notwithstanding anything to the contrary provided in this letter agreement, in the event you or any of your Representatives receive a request or are required by any law, rule, order, decree or regulation (including, without limitation, applicable securities or antitrust laws and applicable stock exchange rules) or any regulatory authority or legal, administrative or judicial process (including, without limitation, or by deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process or pursuant to a formal request from a regulatory examiner) (any such requested or required disclosure, an “External Demand”) to disclose all or any part of the Evaluation Material or the Transaction Information, you or your Representatives, as the case may be, agree, to the extent permissible and reasonably practicable, to (a) promptly notify the Company of the existence, terms and circumstances surrounding such External Demand or Permitted Disclosure and (b) assist the Company, at the Company’s request and expense, in seeking a protective order or other appropriate remedy to the extent available under the circumstances. In the event that such protective order or other remedy is not obtained or that the Company waives compliance with the provisions hereof, (i) you or your Representatives, as the case may be, may disclose only that portion of the Evaluation Material or Transaction Information which you or your Representatives are advised by counsel is required to be disclosed and to only those persons to whom you or your Representatives are advised by counsel are required to receive such information, and you or your Representatives shall exercise reasonable efforts to obtain assurance that confidential treatment will be accorded such Evaluation Material or Transaction Information, and (ii) you or your Representatives shall not be liable for such disclosure.
5. Communications and Requests. You agree that unless otherwise agreed to by the Company in writing, (a) all communications regarding the Possible Transaction, (b) requests for additional information regarding the Possible Transaction, (c) requests for facility tours or management meetings in connection with the Possible Transaction, and (d) discussions or questions regarding procedures, timing and terms of the Possible Transaction, will be submitted or directed exclusively to Andrew Weisenfeld ([email protected], 212-887-2102) of MTS Health Partners, L.P., the financial advisor to the Company or such other persons designated by the Company for such purpose.
6. Non-Solicit. You agree that, for a period of one year from the date of this letter agreement, neither you nor any of your Affiliates who are provided with Evaluation Material or become aware of your discussions regarding the Possible Transaction will, directly or indirectly, solicit for employment or employ (a) any individual serving as an executive officer of the Company, or (b) any employee of the Company or any of its subsidiaries with whom you have had substantial contact, or who is specifically identified to you (other than through a general roster of employees, general employee equity and compensation data or other employee data provided in due diligence that is general in nature), during your investigation of the Company and its business in connection with the Possible Transaction, in each case without obtaining the prior written consent of the Company; provided that you may (i) make general solicitations for employment not specifically directed at the Company or any of its subsidiaries or their respective employees and employ any person who responds to such solicitations, (ii) solicit and/or hire any person who contacts such party or its Affiliates on his or her own initiative without any initial direct or indirect solicitation or encouragement by such party or its Affiliates (other than as permitted by the preceding clause (i) and (iii) solicit and/or hire any person whose employment with the other party and its subsidiaries previously has been terminated for at least 90 days.
7. Standstill. You hereby acknowledge that, except as otherwise invited in writing by the Company’s Board of Directors or a Representative thereof or otherwise agreed in writing by the Company, for a period of one year from the date of this letter agreement (the “Standstill Period”), neither you nor any of your Affiliates who are provided with Evaluation Material will: (a) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase a substantial portion of the Company’s assets or businesses, or similar transactions involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company; (b) (i) acquire beneficial ownership of any voting securities (including in derivative form) of the Company (collectively, a transaction specified in (a)(i), (a)(ii) and (b)(i) involving a majority of the Company’s outstanding capital stock or consolidated assets, is referred to as a “Business Combination”), (ii) propose or seek, whether alone or in concert with others, any “solicitation” of “proxies” (as such terms are used in the rules of the Securities and Exchange Commission) or consents to vote any voting securities (including in derivative form) of the Company, (iii) nominate any person as a director of the Company, or (iv) propose any matter to be voted upon by the stockholders of the Company; (c) form, join or in any way participate in a third party “group” (as such term is used in the rules of the Securities and Exchange Commission) with respect to any voting securities (including in derivative form) of the Company or a Business Combination involving the Company; (d) request the Company (or any of its officers, directors or Representatives), directly or indirectly, to amend or waive any provision of this paragraph (including this sentence); or (e) take any action that would reasonably be expected to require the Company to make a public announcement regarding a potential Business Combination; provided, however, that nothing in this paragraph shall prohibit you from making a confidential proposal to the Company or the Company’s Board of Directors for a transaction involving a Business Combination (including a Possible Transaction) in a manner that would not reasonably be expected to require either party to make public disclosure with respect thereto.
Notwithstanding anything to the contrary in this letter agreement, the Standstill Period shall automatically terminate and cease to be of any further force and effect upon the earliest to occur of any of the following: (a) the Company publicly announcing its or its Board of Directors’ approval or recommendation of (A) any person or “group” (as such term is used in the rules of the Securities and Exchange Commission) commencing or publicly announcing an intention to commence a tender or exchange offer that, if consummated, would make such person or “group” (as such term is used in the rules of the Securities and Exchange Commission) (or any of their respective Affiliates) the beneficial owner (within the meaning of Section 13(d)(1) of the Exchange Act) of 50% or more of the Company’s equity securities, (B) an offer or proposal by any person or “group” (as such term is used in the rules of the Securities and Exchange Commission) which if effected would result in the acquisition (whether by merger, consolidation, recapitalization, liquidation or otherwise) by such person or “group” (as such term is used in the rules of the Securities and Exchange Commission) of 50% or more of such other party’s equity securities or a majority of the consolidated assets of the Company and its Affiliates (any such transaction, an “Acquisition Transaction”), or (C) any Acquisition Transaction, or (b) the Company entering into or publicly announcing its intention to enter into a definitive agreement with a third party to effectuate an Acquisition Transaction. Notwithstanding anything to the contrary in this letter agreement, you may own or acquire, or propose to acquire, any assets or securities of the Company in connection with a transaction subject to approval pursuant to proceedings under the United States Bankruptcy Code.
8. No Representation of Accuracy. Although the Company has endeavored to include in the Evaluation Material information which it believes to be relevant for the purpose of your investigation, you understand that none of the Company or its Representatives have made or make in this letter agreement any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material. You agree that none of the Company or its Representatives shall have any liability to you or any of your Representatives pursuant to this letter agreement resulting from the selection, use or content of the Evaluation Material by you or your Affiliates or Representatives. You further agree that you and your Representatives will be entitled to rely solely on such representations and warranties as may be included in a definitive agreement relating to a Possible Transaction, subject to such limitations and restrictions as may be contained therein.
9. Destruction or Return of Evaluation Material. You may determine not to pursue a Possible Transaction at any time and for any, or no, reason, and will promptly inform the Company at any time such a decision is made. Upon the Company’s demand, you shall, at your sole option, either promptly (a) destroy the Evaluation Material and any copies thereof, or (b) return to the Company all Evaluation Material and any copies thereof, and, in either case, confirm in writing to the Company that all such material has been destroyed or returned, as applicable, in compliance with this letter agreement. It is understood that information in an intangible or electronic format containing Evaluation Material cannot be removed, erased or otherwise deleted from archival systems (also known as “computer or system back-ups”) but that such information will continue to be protected under the confidentiality requirements and non-use limitations contained in this letter agreement, and you and your Representatives shall continue to be bound by the obligations of confidentiality and non-use hereunder. Notwithstanding the foregoing, you and your Representatives may retain one copy of any work product prepared by you or them that contains Evaluation Material to the extent necessary or advisable pursuant to applicable legal or regulatory requirements, professional standards or reasonable business practice; provided that you and such Representatives shall continue to be bound by the obligations of confidentiality and non-use hereunder with respect to such work product.
10. Injunctive Relief. You acknowledge and agree that money damages may not be a sufficient remedy for any breach of this letter agreement by you or your Representatives and that the Company shall be entitled to seek equitable relief, including injunction and specific performance, as a remedy for any such breach, without proof of damages, and each party further agrees to waive, and shall cause its Representatives to waive, any requirement for the securing or posting of any bond in connection with any such remedy. Such remedies shall not be the exclusive remedies for a breach of this letter agreement, but will be in addition to all other remedies available at law or in equity.
11. Definitive Agreement. You agree that unless and until a definitive agreement between the Company and you with respect to the Possible Transaction (a “Definitive Agreement”) has been executed and delivered, neither the Company nor you will be under any legal obligation of any kind whatsoever with respect to a Possible Transaction by virtue of this letter agreement or any other written or oral expression except, in the case of this letter agreement, for the matters specifically agreed to herein. In addition, you hereby waive, in advance, any claims (including, without limitation, breach of contract) in connection with any Possible Transaction other than claims under any Definitive Agreement relating to a Possible Transaction or under this letter agreement. For purposes of this letter agreement, the term “Definitive Agreement” does not include an executed letter of intent or any other preliminary written agreement, nor does it include any oral acceptance of an offer or bid by you. The agreement set forth in this paragraph may be modified or waived only by a separate writing by the Company and you expressly so modifying or waiving such agreement.
12. Process Agreements. You acknowledge that (a) the Company shall be free to conduct a process for a Possible Transaction as it in its sole discretion shall determine (including, without limitation, negotiating with any other prospective buyers and entering into a definitive agreement without prior notice to you or to any other person), and (b) any procedures relating to such Possible Transaction may be implemented or changed at any time prior to entry into a definitive agreement relating to such Possible Transaction without notice to you or any other person. The Company reserves the right at any time, in its sole discretion, for any reason or no reason, to reject any and all proposals made by you or any of your Representatives with regard to the Possible Transaction, to terminate discussions and negotiations with you, and to refuse to provide any further access to Evaluation Material. You further acknowledge that the Company has entered into an Agreement and Plan of Merger with REGENXBIO, Inc. and Muddy Charles Acquisition Corporation, dated August 24, 2017 (the “Merger Agreement”), and that you have read the Merger Agreement in its entirety, including Sections 5.3 and 5.4 therein. You agree that nothing in this letter agreement shall be deemed to restrict the Company’s ability to comply with the provisions of the Merger Agreement, including Sections 5.3 and 5.4 therein, and in the case of any inconsistency between this letter agreement and the Merger Agreement, the terms of the Merger Agreement shall control with respect to any action by the Company.
13. No Waiver. No failure or delay by the Company or any of its Representatives in exercising any right, power or privilege under this letter agreement shall operate as a waiver thereof, and no amendment, modification or waiver hereof shall be effective, unless in writing and signed by an officer or other authorized person of the Company hereto.
14. Severability. The illegality, invalidity or unenforceability of any provision hereof under the laws of any jurisdiction shall not affect its legality, validity or enforceability under the laws of any other jurisdiction, nor the legality, validity or enforceability of any other provision.
15. Governing Law and Forum. This letter agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware. The parties hereby irrevocably and unconditionally consent to the exclusive jurisdiction of the Chancery Courts in the State of Delaware and the United States District Court for the District of the State of Delaware for any action, suit or proceeding arising out of or relating to this letter agreement or the Possible Transaction, and agree not to commence any action, suit or proceeding related thereto except in such courts.
16. Counterparts. This letter agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute the same agreement. One or more counterparts of this letter agreement may be delivered by facsimile or pdf electronic transmission, with the intention that they shall have the same effect as an original counterpart hereof.
17. Term. This letter agreement shall terminate on the date that is two years following the date hereof.
Very truly yours,
Dimension Therapeutics, Inc.
By: /s/ Annalisa Jenkins, MBBS, FRCP
Name: Annalisa Jenkins, MBBS, FRCP
Title: President & Chief Executive Officer
Confirmed and Agreed to:
Ultragenyx Pharmaceutical Inc.
By: /s/ Shalini Sharp
Name: Shalini Sharp
Title: Chief Financial Officer
Date: September 19, 2017
| Entailment |
620_nda-2 | 620_nda-2_0 | Q: Confidential Information shall only include technical information.
Text: Exhibit (e)(2)
September 19, 2017
Ultragenyx Pharmaceutical Inc.
60 Leveroni Court
Novato, California 94949
Attention: Karah Parschauer, General Counsel
Ladies and Gentlemen:
In connection with your consideration of a possible negotiated business transaction involving Dimension Therapeutics, Inc. (the “Company”) and you (the “Possible Transaction”), and in order to evaluate, consider, negotiate and/or implement the Possible Transaction, you have requested information concerning the Company that is confidential and proprietary. As a condition to being furnished such confidential and proprietary information, you agree to treat any such information, whether written or oral, concerning the Company or any of its subsidiaries, Affiliates (as such term is defined in Rule 12b-2 of the Securities Exchange Act of 1934, as amended) or divisions (whether prepared by the Company, its advisors or otherwise) that is furnished on or after the date hereof to you by or on behalf of the Company (herein collectively referred to as the “Evaluation Material”) in accordance with the provisions of this letter agreement and to take or abstain from taking certain other actions herein set forth. The term “Evaluation Material” includes, without limitation, all notes, analyses, compilations, spreadsheets, data, reports, studies, interpretations or other documents furnished by or on behalf of the Company to you or your Representatives (as defined below) or prepared by you or your Representatives, to the extent such materials reflect or are based upon the Evaluation Material. The term “Evaluation Material” does not include information that (a) is or becomes available to you on a nonconfidential basis from a source other than the Company or its Representatives; provided that such source is not known by you to be bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation to, the Company that prohibits such disclosure, (b) is or becomes available to the public other than as a result of a disclosure by you or your Representatives in violation of this letter agreement, (c) you can demonstrate is in your possession or the possession of your Representatives prior to receipt from the Company or its Representatives pursuant to this letter agreement, or (d) has been or is independently developed by you or your Representatives without the use of the Evaluation Material or in violation of the terms of this letter agreement. For purposes of this letter agreement the term “Representatives” shall include any person, its Affiliates and such person’s and its Affiliates’ respective directors, officers, employees, agents, attorneys, accountants, financial advisors and other professional representatives or advisors.
1. Non-Disclosure and Use of Evaluation Material. You hereby agree that the Evaluation Material will be kept confidential and used solely for the purpose of evaluating, considering,negotiating and/or implementing the Possible Transaction; provided, however, that the Evaluation Material may be disclosed (i) to any of your Representatives who need to know such information solely for the purpose of evaluating, considering,
negotiating and/or implementing a Possible Transaction, (ii) pursuant to an External Demand in accordance with paragraph 4 of this letter agreement and (iii) as the Company may otherwise consent in writing. All such Representatives shall (A) be informed by you of the confidential nature of the Evaluation Material, (B) agree to treat the Evaluation Material in accordance with this letter agreement, and (C) be advised of the terms of this letter agreement and directed to comply with the terms hereof to the same extent as if they were parties to this letter agreement. You agree to be responsible for any breaches of any of the provisions of this letter agreement by any of your Representatives (it being understood that such responsibility shall be in addition to and not by way of limitation of any right or remedy the Company may have against your Representatives with respect to such breach).
2. Securities Laws. You hereby acknowledge that you and your Representatives are aware, and will advise your Representatives, that the Evaluation Material may contain material, non-public information about the Company and that United States securities laws prohibit any person who has material, non-public information about a company from purchasing or selling any securities of the Company while in possession of such information.
3. Transaction Information. You will not, and will direct your Representatives not to, disclose to any person (except (i) to your Representatives who need to know such information for the purpose of evaluating, considering, negotiating and/or implementing a Possible Transaction and (ii) as the Company may otherwise consent in writing) either the fact that discussions or negotiations are taking place concerning the Possible Transaction or any of the terms, conditions or other facts with respect to the Possible Transaction, including the status thereof or that Evaluation Material has been made available to you (such information, “Transaction Information”); provided, however, that disclosure of Transaction Information pursuant to an External Demand shall be governed by paragraph 4 of this letter agreement; Without limiting the generality of the foregoing, you further agree that you will not share the Evaluation Material with or enter into any agreement, arrangement or understanding, or any discussions which would reasonably be expected to lead to an agreement, arrangement or understanding, with any other person, including other potential bidders and equity or debt financing sources (other than your Representatives as permitted above) regarding a Possible Transaction involving the Company without the prior written consent of the Company and only upon such person executing a confidentiality agreement in favor of the Company with terms and conditions substantially consistent with this letter agreement.
4. Required Disclosure. Notwithstanding anything to the contrary provided in this letter agreement, in the event you or any of your Representatives receive a request or are required by any law, rule, order, decree or regulation (including, without limitation, applicable securities or antitrust laws and applicable stock exchange rules) or any regulatory authority or legal, administrative or judicial process (including, without limitation, or by deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process or pursuant to a formal request from a regulatory examiner) (any such requested or required disclosure, an “External Demand”) to disclose all or any part of the Evaluation Material or the Transaction Information, you or your Representatives, as the case may be, agree, to the extent permissible and reasonably practicable, to (a) promptly notify the Company of the existence, terms and circumstances surrounding such External Demand or Permitted Disclosure and (b) assist the Company, at the Company’s request and expense, in seeking a protective order or other appropriate remedy to the extent available under the circumstances. In the event that such protective order or other remedy is not obtained or that the Company waives compliance with the provisions hereof, (i) you or your Representatives, as the case may be, may disclose only that portion of the Evaluation Material or Transaction Information which you or your Representatives are advised by counsel is required to be disclosed and to only those persons to whom you or your Representatives are advised by counsel are required to receive such information, and you or your Representatives shall exercise reasonable efforts to obtain assurance that confidential treatment will be accorded such Evaluation Material or Transaction Information, and (ii) you or your Representatives shall not be liable for such disclosure.
5. Communications and Requests. You agree that unless otherwise agreed to by the Company in writing, (a) all communications regarding the Possible Transaction, (b) requests for additional information regarding the Possible Transaction, (c) requests for facility tours or management meetings in connection with the Possible Transaction, and (d) discussions or questions regarding procedures, timing and terms of the Possible Transaction, will be submitted or directed exclusively to Andrew Weisenfeld ([email protected], 212-887-2102) of MTS Health Partners, L.P., the financial advisor to the Company or such other persons designated by the Company for such purpose.
6. Non-Solicit. You agree that, for a period of one year from the date of this letter agreement, neither you nor any of your Affiliates who are provided with Evaluation Material or become aware of your discussions regarding the Possible Transaction will, directly or indirectly, solicit for employment or employ (a) any individual serving as an executive officer of the Company, or (b) any employee of the Company or any of its subsidiaries with whom you have had substantial contact, or who is specifically identified to you (other than through a general roster of employees, general employee equity and compensation data or other employee data provided in due diligence that is general in nature), during your investigation of the Company and its business in connection with the Possible Transaction, in each case without obtaining the prior written consent of the Company; provided that you may (i) make general solicitations for employment not specifically directed at the Company or any of its subsidiaries or their respective employees and employ any person who responds to such solicitations, (ii) solicit and/or hire any person who contacts such party or its Affiliates on his or her own initiative without any initial direct or indirect solicitation or encouragement by such party or its Affiliates (other than as permitted by the preceding clause (i) and (iii) solicit and/or hire any person whose employment with the other party and its subsidiaries previously has been terminated for at least 90 days.
7. Standstill. You hereby acknowledge that, except as otherwise invited in writing by the Company’s Board of Directors or a Representative thereof or otherwise agreed in writing by the Company, for a period of one year from the date of this letter agreement (the “Standstill Period”), neither you nor any of your Affiliates who are provided with Evaluation Material will: (a) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase a substantial portion of the Company’s assets or businesses, or similar transactions involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company; (b) (i) acquire beneficial ownership of any voting securities (including in derivative form) of the Company (collectively, a transaction specified in (a)(i), (a)(ii) and (b)(i) involving a majority of the Company’s outstanding capital stock or consolidated assets, is referred to as a “Business Combination”), (ii) propose or seek, whether alone or in concert with others, any “solicitation” of “proxies” (as such terms are used in the rules of the Securities and Exchange Commission) or consents to vote any voting securities (including in derivative form) of the Company, (iii) nominate any person as a director of the Company, or (iv) propose any matter to be voted upon by the stockholders of the Company; (c) form, join or in any way participate in a third party “group” (as such term is used in the rules of the Securities and Exchange Commission) with respect to any voting securities (including in derivative form) of the Company or a Business Combination involving the Company; (d) request the Company (or any of its officers, directors or Representatives), directly or indirectly, to amend or waive any provision of this paragraph (including this sentence); or (e) take any action that would reasonably be expected to require the Company to make a public announcement regarding a potential Business Combination; provided, however, that nothing in this paragraph shall prohibit you from making a confidential proposal to the Company or the Company’s Board of Directors for a transaction involving a Business Combination (including a Possible Transaction) in a manner that would not reasonably be expected to require either party to make public disclosure with respect thereto.
Notwithstanding anything to the contrary in this letter agreement, the Standstill Period shall automatically terminate and cease to be of any further force and effect upon the earliest to occur of any of the following: (a) the Company publicly announcing its or its Board of Directors’ approval or recommendation of (A) any person or “group” (as such term is used in the rules of the Securities and Exchange Commission) commencing or publicly announcing an intention to commence a tender or exchange offer that, if consummated, would make such person or “group” (as such term is used in the rules of the Securities and Exchange Commission) (or any of their respective Affiliates) the beneficial owner (within the meaning of Section 13(d)(1) of the Exchange Act) of 50% or more of the Company’s equity securities, (B) an offer or proposal by any person or “group” (as such term is used in the rules of the Securities and Exchange Commission) which if effected would result in the acquisition (whether by merger, consolidation, recapitalization, liquidation or otherwise) by such person or “group” (as such term is used in the rules of the Securities and Exchange Commission) of 50% or more of such other party’s equity securities or a majority of the consolidated assets of the Company and its Affiliates (any such transaction, an “Acquisition Transaction”), or (C) any Acquisition Transaction, or (b) the Company entering into or publicly announcing its intention to enter into a definitive agreement with a third party to effectuate an Acquisition Transaction. Notwithstanding anything to the contrary in this letter agreement, you may own or acquire, or propose to acquire, any assets or securities of the Company in connection with a transaction subject to approval pursuant to proceedings under the United States Bankruptcy Code.
8. No Representation of Accuracy. Although the Company has endeavored to include in the Evaluation Material information which it believes to be relevant for the purpose of your investigation, you understand that none of the Company or its Representatives have made or make in this letter agreement any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material. You agree that none of the Company or its Representatives shall have any liability to you or any of your Representatives pursuant to this letter agreement resulting from the selection, use or content of the Evaluation Material by you or your Affiliates or Representatives. You further agree that you and your Representatives will be entitled to rely solely on such representations and warranties as may be included in a definitive agreement relating to a Possible Transaction, subject to such limitations and restrictions as may be contained therein.
9. Destruction or Return of Evaluation Material. You may determine not to pursue a Possible Transaction at any time and for any, or no, reason, and will promptly inform the Company at any time such a decision is made. Upon the Company’s demand, you shall, at your sole option, either promptly (a) destroy the Evaluation Material and any copies thereof, or (b) return to the Company all Evaluation Material and any copies thereof, and, in either case, confirm in writing to the Company that all such material has been destroyed or returned, as applicable, in compliance with this letter agreement. It is understood that information in an intangible or electronic format containing Evaluation Material cannot be removed, erased or otherwise deleted from archival systems (also known as “computer or system back-ups”) but that such information will continue to be protected under the confidentiality requirements and non-use limitations contained in this letter agreement, and you and your Representatives shall continue to be bound by the obligations of confidentiality and non-use hereunder. Notwithstanding the foregoing, you and your Representatives may retain one copy of any work product prepared by you or them that contains Evaluation Material to the extent necessary or advisable pursuant to applicable legal or regulatory requirements, professional standards or reasonable business practice; provided that you and such Representatives shall continue to be bound by the obligations of confidentiality and non-use hereunder with respect to such work product.
10. Injunctive Relief. You acknowledge and agree that money damages may not be a sufficient remedy for any breach of this letter agreement by you or your Representatives and that the Company shall be entitled to seek equitable relief, including injunction and specific performance, as a remedy for any such breach, without proof of damages, and each party further agrees to waive, and shall cause its Representatives to waive, any requirement for the securing or posting of any bond in connection with any such remedy. Such remedies shall not be the exclusive remedies for a breach of this letter agreement, but will be in addition to all other remedies available at law or in equity.
11. Definitive Agreement. You agree that unless and until a definitive agreement between the Company and you with respect to the Possible Transaction (a “Definitive Agreement”) has been executed and delivered, neither the Company nor you will be under any legal obligation of any kind whatsoever with respect to a Possible Transaction by virtue of this letter agreement or any other written or oral expression except, in the case of this letter agreement, for the matters specifically agreed to herein. In addition, you hereby waive, in advance, any claims (including, without limitation, breach of contract) in connection with any Possible Transaction other than claims under any Definitive Agreement relating to a Possible Transaction or under this letter agreement. For purposes of this letter agreement, the term “Definitive Agreement” does not include an executed letter of intent or any other preliminary written agreement, nor does it include any oral acceptance of an offer or bid by you. The agreement set forth in this paragraph may be modified or waived only by a separate writing by the Company and you expressly so modifying or waiving such agreement.
12. Process Agreements. You acknowledge that (a) the Company shall be free to conduct a process for a Possible Transaction as it in its sole discretion shall determine (including, without limitation, negotiating with any other prospective buyers and entering into a definitive agreement without prior notice to you or to any other person), and (b) any procedures relating to such Possible Transaction may be implemented or changed at any time prior to entry into a definitive agreement relating to such Possible Transaction without notice to you or any other person. The Company reserves the right at any time, in its sole discretion, for any reason or no reason, to reject any and all proposals made by you or any of your Representatives with regard to the Possible Transaction, to terminate discussions and negotiations with you, and to refuse to provide any further access to Evaluation Material. You further acknowledge that the Company has entered into an Agreement and Plan of Merger with REGENXBIO, Inc. and Muddy Charles Acquisition Corporation, dated August 24, 2017 (the “Merger Agreement”), and that you have read the Merger Agreement in its entirety, including Sections 5.3 and 5.4 therein. You agree that nothing in this letter agreement shall be deemed to restrict the Company’s ability to comply with the provisions of the Merger Agreement, including Sections 5.3 and 5.4 therein, and in the case of any inconsistency between this letter agreement and the Merger Agreement, the terms of the Merger Agreement shall control with respect to any action by the Company.
13. No Waiver. No failure or delay by the Company or any of its Representatives in exercising any right, power or privilege under this letter agreement shall operate as a waiver thereof, and no amendment, modification or waiver hereof shall be effective, unless in writing and signed by an officer or other authorized person of the Company hereto.
14. Severability. The illegality, invalidity or unenforceability of any provision hereof under the laws of any jurisdiction shall not affect its legality, validity or enforceability under the laws of any other jurisdiction, nor the legality, validity or enforceability of any other provision.
15. Governing Law and Forum. This letter agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware. The parties hereby irrevocably and unconditionally consent to the exclusive jurisdiction of the Chancery Courts in the State of Delaware and the United States District Court for the District of the State of Delaware for any action, suit or proceeding arising out of or relating to this letter agreement or the Possible Transaction, and agree not to commence any action, suit or proceeding related thereto except in such courts.
16. Counterparts. This letter agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute the same agreement. One or more counterparts of this letter agreement may be delivered by facsimile or pdf electronic transmission, with the intention that they shall have the same effect as an original counterpart hereof.
17. Term. This letter agreement shall terminate on the date that is two years following the date hereof.
Very truly yours,
Dimension Therapeutics, Inc.
By: /s/ Annalisa Jenkins, MBBS, FRCP
Name: Annalisa Jenkins, MBBS, FRCP
Title: President & Chief Executive Officer
Confirmed and Agreed to:
Ultragenyx Pharmaceutical Inc.
By: /s/ Shalini Sharp
Name: Shalini Sharp
Title: Chief Financial Officer
Date: September 19, 2017
| Not mentioned |
620_nda-1 | 620_nda-1_0 | Q: All Confidential Information shall be expressly identified by the Disclosing Party.
Text: Exhibit (e)(2)
September 19, 2017
Ultragenyx Pharmaceutical Inc.
60 Leveroni Court
Novato, California 94949
Attention: Karah Parschauer, General Counsel
Ladies and Gentlemen:
In connection with your consideration of a possible negotiated business transaction involving Dimension Therapeutics, Inc. (the “Company”) and you (the “Possible Transaction”), and in order to evaluate, consider, negotiate and/or implement the Possible Transaction, you have requested information concerning the Company that is confidential and proprietary. As a condition to being furnished such confidential and proprietary information, you agree to treat any such information, whether written or oral, concerning the Company or any of its subsidiaries, Affiliates (as such term is defined in Rule 12b-2 of the Securities Exchange Act of 1934, as amended) or divisions (whether prepared by the Company, its advisors or otherwise) that is furnished on or after the date hereof to you by or on behalf of the Company (herein collectively referred to as the “Evaluation Material”) in accordance with the provisions of this letter agreement and to take or abstain from taking certain other actions herein set forth. The term “Evaluation Material” includes, without limitation, all notes, analyses, compilations, spreadsheets, data, reports, studies, interpretations or other documents furnished by or on behalf of the Company to you or your Representatives (as defined below) or prepared by you or your Representatives, to the extent such materials reflect or are based upon the Evaluation Material. The term “Evaluation Material” does not include information that (a) is or becomes available to you on a nonconfidential basis from a source other than the Company or its Representatives; provided that such source is not known by you to be bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation to, the Company that prohibits such disclosure, (b) is or becomes available to the public other than as a result of a disclosure by you or your Representatives in violation of this letter agreement, (c) you can demonstrate is in your possession or the possession of your Representatives prior to receipt from the Company or its Representatives pursuant to this letter agreement, or (d) has been or is independently developed by you or your Representatives without the use of the Evaluation Material or in violation of the terms of this letter agreement. For purposes of this letter agreement the term “Representatives” shall include any person, its Affiliates and such person’s and its Affiliates’ respective directors, officers, employees, agents, attorneys, accountants, financial advisors and other professional representatives or advisors.
1. Non-Disclosure and Use of Evaluation Material. You hereby agree that the Evaluation Material will be kept confidential and used solely for the purpose of evaluating, considering,negotiating and/or implementing the Possible Transaction; provided, however, that the Evaluation Material may be disclosed (i) to any of your Representatives who need to know such information solely for the purpose of evaluating, considering,
negotiating and/or implementing a Possible Transaction, (ii) pursuant to an External Demand in accordance with paragraph 4 of this letter agreement and (iii) as the Company may otherwise consent in writing. All such Representatives shall (A) be informed by you of the confidential nature of the Evaluation Material, (B) agree to treat the Evaluation Material in accordance with this letter agreement, and (C) be advised of the terms of this letter agreement and directed to comply with the terms hereof to the same extent as if they were parties to this letter agreement. You agree to be responsible for any breaches of any of the provisions of this letter agreement by any of your Representatives (it being understood that such responsibility shall be in addition to and not by way of limitation of any right or remedy the Company may have against your Representatives with respect to such breach).
2. Securities Laws. You hereby acknowledge that you and your Representatives are aware, and will advise your Representatives, that the Evaluation Material may contain material, non-public information about the Company and that United States securities laws prohibit any person who has material, non-public information about a company from purchasing or selling any securities of the Company while in possession of such information.
3. Transaction Information. You will not, and will direct your Representatives not to, disclose to any person (except (i) to your Representatives who need to know such information for the purpose of evaluating, considering, negotiating and/or implementing a Possible Transaction and (ii) as the Company may otherwise consent in writing) either the fact that discussions or negotiations are taking place concerning the Possible Transaction or any of the terms, conditions or other facts with respect to the Possible Transaction, including the status thereof or that Evaluation Material has been made available to you (such information, “Transaction Information”); provided, however, that disclosure of Transaction Information pursuant to an External Demand shall be governed by paragraph 4 of this letter agreement; Without limiting the generality of the foregoing, you further agree that you will not share the Evaluation Material with or enter into any agreement, arrangement or understanding, or any discussions which would reasonably be expected to lead to an agreement, arrangement or understanding, with any other person, including other potential bidders and equity or debt financing sources (other than your Representatives as permitted above) regarding a Possible Transaction involving the Company without the prior written consent of the Company and only upon such person executing a confidentiality agreement in favor of the Company with terms and conditions substantially consistent with this letter agreement.
4. Required Disclosure. Notwithstanding anything to the contrary provided in this letter agreement, in the event you or any of your Representatives receive a request or are required by any law, rule, order, decree or regulation (including, without limitation, applicable securities or antitrust laws and applicable stock exchange rules) or any regulatory authority or legal, administrative or judicial process (including, without limitation, or by deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process or pursuant to a formal request from a regulatory examiner) (any such requested or required disclosure, an “External Demand”) to disclose all or any part of the Evaluation Material or the Transaction Information, you or your Representatives, as the case may be, agree, to the extent permissible and reasonably practicable, to (a) promptly notify the Company of the existence, terms and circumstances surrounding such External Demand or Permitted Disclosure and (b) assist the Company, at the Company’s request and expense, in seeking a protective order or other appropriate remedy to the extent available under the circumstances. In the event that such protective order or other remedy is not obtained or that the Company waives compliance with the provisions hereof, (i) you or your Representatives, as the case may be, may disclose only that portion of the Evaluation Material or Transaction Information which you or your Representatives are advised by counsel is required to be disclosed and to only those persons to whom you or your Representatives are advised by counsel are required to receive such information, and you or your Representatives shall exercise reasonable efforts to obtain assurance that confidential treatment will be accorded such Evaluation Material or Transaction Information, and (ii) you or your Representatives shall not be liable for such disclosure.
5. Communications and Requests. You agree that unless otherwise agreed to by the Company in writing, (a) all communications regarding the Possible Transaction, (b) requests for additional information regarding the Possible Transaction, (c) requests for facility tours or management meetings in connection with the Possible Transaction, and (d) discussions or questions regarding procedures, timing and terms of the Possible Transaction, will be submitted or directed exclusively to Andrew Weisenfeld ([email protected], 212-887-2102) of MTS Health Partners, L.P., the financial advisor to the Company or such other persons designated by the Company for such purpose.
6. Non-Solicit. You agree that, for a period of one year from the date of this letter agreement, neither you nor any of your Affiliates who are provided with Evaluation Material or become aware of your discussions regarding the Possible Transaction will, directly or indirectly, solicit for employment or employ (a) any individual serving as an executive officer of the Company, or (b) any employee of the Company or any of its subsidiaries with whom you have had substantial contact, or who is specifically identified to you (other than through a general roster of employees, general employee equity and compensation data or other employee data provided in due diligence that is general in nature), during your investigation of the Company and its business in connection with the Possible Transaction, in each case without obtaining the prior written consent of the Company; provided that you may (i) make general solicitations for employment not specifically directed at the Company or any of its subsidiaries or their respective employees and employ any person who responds to such solicitations, (ii) solicit and/or hire any person who contacts such party or its Affiliates on his or her own initiative without any initial direct or indirect solicitation or encouragement by such party or its Affiliates (other than as permitted by the preceding clause (i) and (iii) solicit and/or hire any person whose employment with the other party and its subsidiaries previously has been terminated for at least 90 days.
7. Standstill. You hereby acknowledge that, except as otherwise invited in writing by the Company’s Board of Directors or a Representative thereof or otherwise agreed in writing by the Company, for a period of one year from the date of this letter agreement (the “Standstill Period”), neither you nor any of your Affiliates who are provided with Evaluation Material will: (a) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase a substantial portion of the Company’s assets or businesses, or similar transactions involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company; (b) (i) acquire beneficial ownership of any voting securities (including in derivative form) of the Company (collectively, a transaction specified in (a)(i), (a)(ii) and (b)(i) involving a majority of the Company’s outstanding capital stock or consolidated assets, is referred to as a “Business Combination”), (ii) propose or seek, whether alone or in concert with others, any “solicitation” of “proxies” (as such terms are used in the rules of the Securities and Exchange Commission) or consents to vote any voting securities (including in derivative form) of the Company, (iii) nominate any person as a director of the Company, or (iv) propose any matter to be voted upon by the stockholders of the Company; (c) form, join or in any way participate in a third party “group” (as such term is used in the rules of the Securities and Exchange Commission) with respect to any voting securities (including in derivative form) of the Company or a Business Combination involving the Company; (d) request the Company (or any of its officers, directors or Representatives), directly or indirectly, to amend or waive any provision of this paragraph (including this sentence); or (e) take any action that would reasonably be expected to require the Company to make a public announcement regarding a potential Business Combination; provided, however, that nothing in this paragraph shall prohibit you from making a confidential proposal to the Company or the Company’s Board of Directors for a transaction involving a Business Combination (including a Possible Transaction) in a manner that would not reasonably be expected to require either party to make public disclosure with respect thereto.
Notwithstanding anything to the contrary in this letter agreement, the Standstill Period shall automatically terminate and cease to be of any further force and effect upon the earliest to occur of any of the following: (a) the Company publicly announcing its or its Board of Directors’ approval or recommendation of (A) any person or “group” (as such term is used in the rules of the Securities and Exchange Commission) commencing or publicly announcing an intention to commence a tender or exchange offer that, if consummated, would make such person or “group” (as such term is used in the rules of the Securities and Exchange Commission) (or any of their respective Affiliates) the beneficial owner (within the meaning of Section 13(d)(1) of the Exchange Act) of 50% or more of the Company’s equity securities, (B) an offer or proposal by any person or “group” (as such term is used in the rules of the Securities and Exchange Commission) which if effected would result in the acquisition (whether by merger, consolidation, recapitalization, liquidation or otherwise) by such person or “group” (as such term is used in the rules of the Securities and Exchange Commission) of 50% or more of such other party’s equity securities or a majority of the consolidated assets of the Company and its Affiliates (any such transaction, an “Acquisition Transaction”), or (C) any Acquisition Transaction, or (b) the Company entering into or publicly announcing its intention to enter into a definitive agreement with a third party to effectuate an Acquisition Transaction. Notwithstanding anything to the contrary in this letter agreement, you may own or acquire, or propose to acquire, any assets or securities of the Company in connection with a transaction subject to approval pursuant to proceedings under the United States Bankruptcy Code.
8. No Representation of Accuracy. Although the Company has endeavored to include in the Evaluation Material information which it believes to be relevant for the purpose of your investigation, you understand that none of the Company or its Representatives have made or make in this letter agreement any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material. You agree that none of the Company or its Representatives shall have any liability to you or any of your Representatives pursuant to this letter agreement resulting from the selection, use or content of the Evaluation Material by you or your Affiliates or Representatives. You further agree that you and your Representatives will be entitled to rely solely on such representations and warranties as may be included in a definitive agreement relating to a Possible Transaction, subject to such limitations and restrictions as may be contained therein.
9. Destruction or Return of Evaluation Material. You may determine not to pursue a Possible Transaction at any time and for any, or no, reason, and will promptly inform the Company at any time such a decision is made. Upon the Company’s demand, you shall, at your sole option, either promptly (a) destroy the Evaluation Material and any copies thereof, or (b) return to the Company all Evaluation Material and any copies thereof, and, in either case, confirm in writing to the Company that all such material has been destroyed or returned, as applicable, in compliance with this letter agreement. It is understood that information in an intangible or electronic format containing Evaluation Material cannot be removed, erased or otherwise deleted from archival systems (also known as “computer or system back-ups”) but that such information will continue to be protected under the confidentiality requirements and non-use limitations contained in this letter agreement, and you and your Representatives shall continue to be bound by the obligations of confidentiality and non-use hereunder. Notwithstanding the foregoing, you and your Representatives may retain one copy of any work product prepared by you or them that contains Evaluation Material to the extent necessary or advisable pursuant to applicable legal or regulatory requirements, professional standards or reasonable business practice; provided that you and such Representatives shall continue to be bound by the obligations of confidentiality and non-use hereunder with respect to such work product.
10. Injunctive Relief. You acknowledge and agree that money damages may not be a sufficient remedy for any breach of this letter agreement by you or your Representatives and that the Company shall be entitled to seek equitable relief, including injunction and specific performance, as a remedy for any such breach, without proof of damages, and each party further agrees to waive, and shall cause its Representatives to waive, any requirement for the securing or posting of any bond in connection with any such remedy. Such remedies shall not be the exclusive remedies for a breach of this letter agreement, but will be in addition to all other remedies available at law or in equity.
11. Definitive Agreement. You agree that unless and until a definitive agreement between the Company and you with respect to the Possible Transaction (a “Definitive Agreement”) has been executed and delivered, neither the Company nor you will be under any legal obligation of any kind whatsoever with respect to a Possible Transaction by virtue of this letter agreement or any other written or oral expression except, in the case of this letter agreement, for the matters specifically agreed to herein. In addition, you hereby waive, in advance, any claims (including, without limitation, breach of contract) in connection with any Possible Transaction other than claims under any Definitive Agreement relating to a Possible Transaction or under this letter agreement. For purposes of this letter agreement, the term “Definitive Agreement” does not include an executed letter of intent or any other preliminary written agreement, nor does it include any oral acceptance of an offer or bid by you. The agreement set forth in this paragraph may be modified or waived only by a separate writing by the Company and you expressly so modifying or waiving such agreement.
12. Process Agreements. You acknowledge that (a) the Company shall be free to conduct a process for a Possible Transaction as it in its sole discretion shall determine (including, without limitation, negotiating with any other prospective buyers and entering into a definitive agreement without prior notice to you or to any other person), and (b) any procedures relating to such Possible Transaction may be implemented or changed at any time prior to entry into a definitive agreement relating to such Possible Transaction without notice to you or any other person. The Company reserves the right at any time, in its sole discretion, for any reason or no reason, to reject any and all proposals made by you or any of your Representatives with regard to the Possible Transaction, to terminate discussions and negotiations with you, and to refuse to provide any further access to Evaluation Material. You further acknowledge that the Company has entered into an Agreement and Plan of Merger with REGENXBIO, Inc. and Muddy Charles Acquisition Corporation, dated August 24, 2017 (the “Merger Agreement”), and that you have read the Merger Agreement in its entirety, including Sections 5.3 and 5.4 therein. You agree that nothing in this letter agreement shall be deemed to restrict the Company’s ability to comply with the provisions of the Merger Agreement, including Sections 5.3 and 5.4 therein, and in the case of any inconsistency between this letter agreement and the Merger Agreement, the terms of the Merger Agreement shall control with respect to any action by the Company.
13. No Waiver. No failure or delay by the Company or any of its Representatives in exercising any right, power or privilege under this letter agreement shall operate as a waiver thereof, and no amendment, modification or waiver hereof shall be effective, unless in writing and signed by an officer or other authorized person of the Company hereto.
14. Severability. The illegality, invalidity or unenforceability of any provision hereof under the laws of any jurisdiction shall not affect its legality, validity or enforceability under the laws of any other jurisdiction, nor the legality, validity or enforceability of any other provision.
15. Governing Law and Forum. This letter agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware. The parties hereby irrevocably and unconditionally consent to the exclusive jurisdiction of the Chancery Courts in the State of Delaware and the United States District Court for the District of the State of Delaware for any action, suit or proceeding arising out of or relating to this letter agreement or the Possible Transaction, and agree not to commence any action, suit or proceeding related thereto except in such courts.
16. Counterparts. This letter agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute the same agreement. One or more counterparts of this letter agreement may be delivered by facsimile or pdf electronic transmission, with the intention that they shall have the same effect as an original counterpart hereof.
17. Term. This letter agreement shall terminate on the date that is two years following the date hereof.
Very truly yours,
Dimension Therapeutics, Inc.
By: /s/ Annalisa Jenkins, MBBS, FRCP
Name: Annalisa Jenkins, MBBS, FRCP
Title: President & Chief Executive Officer
Confirmed and Agreed to:
Ultragenyx Pharmaceutical Inc.
By: /s/ Shalini Sharp
Name: Shalini Sharp
Title: Chief Financial Officer
Date: September 19, 2017
| Not mentioned |
620_nda-19 | 620_nda-19_0 | Q: Some obligations of Agreement may survive termination of Agreement.
Text: Exhibit (e)(2)
September 19, 2017
Ultragenyx Pharmaceutical Inc.
60 Leveroni Court
Novato, California 94949
Attention: Karah Parschauer, General Counsel
Ladies and Gentlemen:
In connection with your consideration of a possible negotiated business transaction involving Dimension Therapeutics, Inc. (the “Company”) and you (the “Possible Transaction”), and in order to evaluate, consider, negotiate and/or implement the Possible Transaction, you have requested information concerning the Company that is confidential and proprietary. As a condition to being furnished such confidential and proprietary information, you agree to treat any such information, whether written or oral, concerning the Company or any of its subsidiaries, Affiliates (as such term is defined in Rule 12b-2 of the Securities Exchange Act of 1934, as amended) or divisions (whether prepared by the Company, its advisors or otherwise) that is furnished on or after the date hereof to you by or on behalf of the Company (herein collectively referred to as the “Evaluation Material”) in accordance with the provisions of this letter agreement and to take or abstain from taking certain other actions herein set forth. The term “Evaluation Material” includes, without limitation, all notes, analyses, compilations, spreadsheets, data, reports, studies, interpretations or other documents furnished by or on behalf of the Company to you or your Representatives (as defined below) or prepared by you or your Representatives, to the extent such materials reflect or are based upon the Evaluation Material. The term “Evaluation Material” does not include information that (a) is or becomes available to you on a nonconfidential basis from a source other than the Company or its Representatives; provided that such source is not known by you to be bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation to, the Company that prohibits such disclosure, (b) is or becomes available to the public other than as a result of a disclosure by you or your Representatives in violation of this letter agreement, (c) you can demonstrate is in your possession or the possession of your Representatives prior to receipt from the Company or its Representatives pursuant to this letter agreement, or (d) has been or is independently developed by you or your Representatives without the use of the Evaluation Material or in violation of the terms of this letter agreement. For purposes of this letter agreement the term “Representatives” shall include any person, its Affiliates and such person’s and its Affiliates’ respective directors, officers, employees, agents, attorneys, accountants, financial advisors and other professional representatives or advisors.
1. Non-Disclosure and Use of Evaluation Material. You hereby agree that the Evaluation Material will be kept confidential and used solely for the purpose of evaluating, considering,negotiating and/or implementing the Possible Transaction; provided, however, that the Evaluation Material may be disclosed (i) to any of your Representatives who need to know such information solely for the purpose of evaluating, considering,
negotiating and/or implementing a Possible Transaction, (ii) pursuant to an External Demand in accordance with paragraph 4 of this letter agreement and (iii) as the Company may otherwise consent in writing. All such Representatives shall (A) be informed by you of the confidential nature of the Evaluation Material, (B) agree to treat the Evaluation Material in accordance with this letter agreement, and (C) be advised of the terms of this letter agreement and directed to comply with the terms hereof to the same extent as if they were parties to this letter agreement. You agree to be responsible for any breaches of any of the provisions of this letter agreement by any of your Representatives (it being understood that such responsibility shall be in addition to and not by way of limitation of any right or remedy the Company may have against your Representatives with respect to such breach).
2. Securities Laws. You hereby acknowledge that you and your Representatives are aware, and will advise your Representatives, that the Evaluation Material may contain material, non-public information about the Company and that United States securities laws prohibit any person who has material, non-public information about a company from purchasing or selling any securities of the Company while in possession of such information.
3. Transaction Information. You will not, and will direct your Representatives not to, disclose to any person (except (i) to your Representatives who need to know such information for the purpose of evaluating, considering, negotiating and/or implementing a Possible Transaction and (ii) as the Company may otherwise consent in writing) either the fact that discussions or negotiations are taking place concerning the Possible Transaction or any of the terms, conditions or other facts with respect to the Possible Transaction, including the status thereof or that Evaluation Material has been made available to you (such information, “Transaction Information”); provided, however, that disclosure of Transaction Information pursuant to an External Demand shall be governed by paragraph 4 of this letter agreement; Without limiting the generality of the foregoing, you further agree that you will not share the Evaluation Material with or enter into any agreement, arrangement or understanding, or any discussions which would reasonably be expected to lead to an agreement, arrangement or understanding, with any other person, including other potential bidders and equity or debt financing sources (other than your Representatives as permitted above) regarding a Possible Transaction involving the Company without the prior written consent of the Company and only upon such person executing a confidentiality agreement in favor of the Company with terms and conditions substantially consistent with this letter agreement.
4. Required Disclosure. Notwithstanding anything to the contrary provided in this letter agreement, in the event you or any of your Representatives receive a request or are required by any law, rule, order, decree or regulation (including, without limitation, applicable securities or antitrust laws and applicable stock exchange rules) or any regulatory authority or legal, administrative or judicial process (including, without limitation, or by deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process or pursuant to a formal request from a regulatory examiner) (any such requested or required disclosure, an “External Demand”) to disclose all or any part of the Evaluation Material or the Transaction Information, you or your Representatives, as the case may be, agree, to the extent permissible and reasonably practicable, to (a) promptly notify the Company of the existence, terms and circumstances surrounding such External Demand or Permitted Disclosure and (b) assist the Company, at the Company’s request and expense, in seeking a protective order or other appropriate remedy to the extent available under the circumstances. In the event that such protective order or other remedy is not obtained or that the Company waives compliance with the provisions hereof, (i) you or your Representatives, as the case may be, may disclose only that portion of the Evaluation Material or Transaction Information which you or your Representatives are advised by counsel is required to be disclosed and to only those persons to whom you or your Representatives are advised by counsel are required to receive such information, and you or your Representatives shall exercise reasonable efforts to obtain assurance that confidential treatment will be accorded such Evaluation Material or Transaction Information, and (ii) you or your Representatives shall not be liable for such disclosure.
5. Communications and Requests. You agree that unless otherwise agreed to by the Company in writing, (a) all communications regarding the Possible Transaction, (b) requests for additional information regarding the Possible Transaction, (c) requests for facility tours or management meetings in connection with the Possible Transaction, and (d) discussions or questions regarding procedures, timing and terms of the Possible Transaction, will be submitted or directed exclusively to Andrew Weisenfeld ([email protected], 212-887-2102) of MTS Health Partners, L.P., the financial advisor to the Company or such other persons designated by the Company for such purpose.
6. Non-Solicit. You agree that, for a period of one year from the date of this letter agreement, neither you nor any of your Affiliates who are provided with Evaluation Material or become aware of your discussions regarding the Possible Transaction will, directly or indirectly, solicit for employment or employ (a) any individual serving as an executive officer of the Company, or (b) any employee of the Company or any of its subsidiaries with whom you have had substantial contact, or who is specifically identified to you (other than through a general roster of employees, general employee equity and compensation data or other employee data provided in due diligence that is general in nature), during your investigation of the Company and its business in connection with the Possible Transaction, in each case without obtaining the prior written consent of the Company; provided that you may (i) make general solicitations for employment not specifically directed at the Company or any of its subsidiaries or their respective employees and employ any person who responds to such solicitations, (ii) solicit and/or hire any person who contacts such party or its Affiliates on his or her own initiative without any initial direct or indirect solicitation or encouragement by such party or its Affiliates (other than as permitted by the preceding clause (i) and (iii) solicit and/or hire any person whose employment with the other party and its subsidiaries previously has been terminated for at least 90 days.
7. Standstill. You hereby acknowledge that, except as otherwise invited in writing by the Company’s Board of Directors or a Representative thereof or otherwise agreed in writing by the Company, for a period of one year from the date of this letter agreement (the “Standstill Period”), neither you nor any of your Affiliates who are provided with Evaluation Material will: (a) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase a substantial portion of the Company’s assets or businesses, or similar transactions involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company; (b) (i) acquire beneficial ownership of any voting securities (including in derivative form) of the Company (collectively, a transaction specified in (a)(i), (a)(ii) and (b)(i) involving a majority of the Company’s outstanding capital stock or consolidated assets, is referred to as a “Business Combination”), (ii) propose or seek, whether alone or in concert with others, any “solicitation” of “proxies” (as such terms are used in the rules of the Securities and Exchange Commission) or consents to vote any voting securities (including in derivative form) of the Company, (iii) nominate any person as a director of the Company, or (iv) propose any matter to be voted upon by the stockholders of the Company; (c) form, join or in any way participate in a third party “group” (as such term is used in the rules of the Securities and Exchange Commission) with respect to any voting securities (including in derivative form) of the Company or a Business Combination involving the Company; (d) request the Company (or any of its officers, directors or Representatives), directly or indirectly, to amend or waive any provision of this paragraph (including this sentence); or (e) take any action that would reasonably be expected to require the Company to make a public announcement regarding a potential Business Combination; provided, however, that nothing in this paragraph shall prohibit you from making a confidential proposal to the Company or the Company’s Board of Directors for a transaction involving a Business Combination (including a Possible Transaction) in a manner that would not reasonably be expected to require either party to make public disclosure with respect thereto.
Notwithstanding anything to the contrary in this letter agreement, the Standstill Period shall automatically terminate and cease to be of any further force and effect upon the earliest to occur of any of the following: (a) the Company publicly announcing its or its Board of Directors’ approval or recommendation of (A) any person or “group” (as such term is used in the rules of the Securities and Exchange Commission) commencing or publicly announcing an intention to commence a tender or exchange offer that, if consummated, would make such person or “group” (as such term is used in the rules of the Securities and Exchange Commission) (or any of their respective Affiliates) the beneficial owner (within the meaning of Section 13(d)(1) of the Exchange Act) of 50% or more of the Company’s equity securities, (B) an offer or proposal by any person or “group” (as such term is used in the rules of the Securities and Exchange Commission) which if effected would result in the acquisition (whether by merger, consolidation, recapitalization, liquidation or otherwise) by such person or “group” (as such term is used in the rules of the Securities and Exchange Commission) of 50% or more of such other party’s equity securities or a majority of the consolidated assets of the Company and its Affiliates (any such transaction, an “Acquisition Transaction”), or (C) any Acquisition Transaction, or (b) the Company entering into or publicly announcing its intention to enter into a definitive agreement with a third party to effectuate an Acquisition Transaction. Notwithstanding anything to the contrary in this letter agreement, you may own or acquire, or propose to acquire, any assets or securities of the Company in connection with a transaction subject to approval pursuant to proceedings under the United States Bankruptcy Code.
8. No Representation of Accuracy. Although the Company has endeavored to include in the Evaluation Material information which it believes to be relevant for the purpose of your investigation, you understand that none of the Company or its Representatives have made or make in this letter agreement any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material. You agree that none of the Company or its Representatives shall have any liability to you or any of your Representatives pursuant to this letter agreement resulting from the selection, use or content of the Evaluation Material by you or your Affiliates or Representatives. You further agree that you and your Representatives will be entitled to rely solely on such representations and warranties as may be included in a definitive agreement relating to a Possible Transaction, subject to such limitations and restrictions as may be contained therein.
9. Destruction or Return of Evaluation Material. You may determine not to pursue a Possible Transaction at any time and for any, or no, reason, and will promptly inform the Company at any time such a decision is made. Upon the Company’s demand, you shall, at your sole option, either promptly (a) destroy the Evaluation Material and any copies thereof, or (b) return to the Company all Evaluation Material and any copies thereof, and, in either case, confirm in writing to the Company that all such material has been destroyed or returned, as applicable, in compliance with this letter agreement. It is understood that information in an intangible or electronic format containing Evaluation Material cannot be removed, erased or otherwise deleted from archival systems (also known as “computer or system back-ups”) but that such information will continue to be protected under the confidentiality requirements and non-use limitations contained in this letter agreement, and you and your Representatives shall continue to be bound by the obligations of confidentiality and non-use hereunder. Notwithstanding the foregoing, you and your Representatives may retain one copy of any work product prepared by you or them that contains Evaluation Material to the extent necessary or advisable pursuant to applicable legal or regulatory requirements, professional standards or reasonable business practice; provided that you and such Representatives shall continue to be bound by the obligations of confidentiality and non-use hereunder with respect to such work product.
10. Injunctive Relief. You acknowledge and agree that money damages may not be a sufficient remedy for any breach of this letter agreement by you or your Representatives and that the Company shall be entitled to seek equitable relief, including injunction and specific performance, as a remedy for any such breach, without proof of damages, and each party further agrees to waive, and shall cause its Representatives to waive, any requirement for the securing or posting of any bond in connection with any such remedy. Such remedies shall not be the exclusive remedies for a breach of this letter agreement, but will be in addition to all other remedies available at law or in equity.
11. Definitive Agreement. You agree that unless and until a definitive agreement between the Company and you with respect to the Possible Transaction (a “Definitive Agreement”) has been executed and delivered, neither the Company nor you will be under any legal obligation of any kind whatsoever with respect to a Possible Transaction by virtue of this letter agreement or any other written or oral expression except, in the case of this letter agreement, for the matters specifically agreed to herein. In addition, you hereby waive, in advance, any claims (including, without limitation, breach of contract) in connection with any Possible Transaction other than claims under any Definitive Agreement relating to a Possible Transaction or under this letter agreement. For purposes of this letter agreement, the term “Definitive Agreement” does not include an executed letter of intent or any other preliminary written agreement, nor does it include any oral acceptance of an offer or bid by you. The agreement set forth in this paragraph may be modified or waived only by a separate writing by the Company and you expressly so modifying or waiving such agreement.
12. Process Agreements. You acknowledge that (a) the Company shall be free to conduct a process for a Possible Transaction as it in its sole discretion shall determine (including, without limitation, negotiating with any other prospective buyers and entering into a definitive agreement without prior notice to you or to any other person), and (b) any procedures relating to such Possible Transaction may be implemented or changed at any time prior to entry into a definitive agreement relating to such Possible Transaction without notice to you or any other person. The Company reserves the right at any time, in its sole discretion, for any reason or no reason, to reject any and all proposals made by you or any of your Representatives with regard to the Possible Transaction, to terminate discussions and negotiations with you, and to refuse to provide any further access to Evaluation Material. You further acknowledge that the Company has entered into an Agreement and Plan of Merger with REGENXBIO, Inc. and Muddy Charles Acquisition Corporation, dated August 24, 2017 (the “Merger Agreement”), and that you have read the Merger Agreement in its entirety, including Sections 5.3 and 5.4 therein. You agree that nothing in this letter agreement shall be deemed to restrict the Company’s ability to comply with the provisions of the Merger Agreement, including Sections 5.3 and 5.4 therein, and in the case of any inconsistency between this letter agreement and the Merger Agreement, the terms of the Merger Agreement shall control with respect to any action by the Company.
13. No Waiver. No failure or delay by the Company or any of its Representatives in exercising any right, power or privilege under this letter agreement shall operate as a waiver thereof, and no amendment, modification or waiver hereof shall be effective, unless in writing and signed by an officer or other authorized person of the Company hereto.
14. Severability. The illegality, invalidity or unenforceability of any provision hereof under the laws of any jurisdiction shall not affect its legality, validity or enforceability under the laws of any other jurisdiction, nor the legality, validity or enforceability of any other provision.
15. Governing Law and Forum. This letter agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware. The parties hereby irrevocably and unconditionally consent to the exclusive jurisdiction of the Chancery Courts in the State of Delaware and the United States District Court for the District of the State of Delaware for any action, suit or proceeding arising out of or relating to this letter agreement or the Possible Transaction, and agree not to commence any action, suit or proceeding related thereto except in such courts.
16. Counterparts. This letter agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute the same agreement. One or more counterparts of this letter agreement may be delivered by facsimile or pdf electronic transmission, with the intention that they shall have the same effect as an original counterpart hereof.
17. Term. This letter agreement shall terminate on the date that is two years following the date hereof.
Very truly yours,
Dimension Therapeutics, Inc.
By: /s/ Annalisa Jenkins, MBBS, FRCP
Name: Annalisa Jenkins, MBBS, FRCP
Title: President & Chief Executive Officer
Confirmed and Agreed to:
Ultragenyx Pharmaceutical Inc.
By: /s/ Shalini Sharp
Name: Shalini Sharp
Title: Chief Financial Officer
Date: September 19, 2017
| Entailment |
620_nda-12 | 620_nda-12_0 | Q: Receiving Party may independently develop information similar to Confidential Information.
Text: Exhibit (e)(2)
September 19, 2017
Ultragenyx Pharmaceutical Inc.
60 Leveroni Court
Novato, California 94949
Attention: Karah Parschauer, General Counsel
Ladies and Gentlemen:
In connection with your consideration of a possible negotiated business transaction involving Dimension Therapeutics, Inc. (the “Company”) and you (the “Possible Transaction”), and in order to evaluate, consider, negotiate and/or implement the Possible Transaction, you have requested information concerning the Company that is confidential and proprietary. As a condition to being furnished such confidential and proprietary information, you agree to treat any such information, whether written or oral, concerning the Company or any of its subsidiaries, Affiliates (as such term is defined in Rule 12b-2 of the Securities Exchange Act of 1934, as amended) or divisions (whether prepared by the Company, its advisors or otherwise) that is furnished on or after the date hereof to you by or on behalf of the Company (herein collectively referred to as the “Evaluation Material”) in accordance with the provisions of this letter agreement and to take or abstain from taking certain other actions herein set forth. The term “Evaluation Material” includes, without limitation, all notes, analyses, compilations, spreadsheets, data, reports, studies, interpretations or other documents furnished by or on behalf of the Company to you or your Representatives (as defined below) or prepared by you or your Representatives, to the extent such materials reflect or are based upon the Evaluation Material. The term “Evaluation Material” does not include information that (a) is or becomes available to you on a nonconfidential basis from a source other than the Company or its Representatives; provided that such source is not known by you to be bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation to, the Company that prohibits such disclosure, (b) is or becomes available to the public other than as a result of a disclosure by you or your Representatives in violation of this letter agreement, (c) you can demonstrate is in your possession or the possession of your Representatives prior to receipt from the Company or its Representatives pursuant to this letter agreement, or (d) has been or is independently developed by you or your Representatives without the use of the Evaluation Material or in violation of the terms of this letter agreement. For purposes of this letter agreement the term “Representatives” shall include any person, its Affiliates and such person’s and its Affiliates’ respective directors, officers, employees, agents, attorneys, accountants, financial advisors and other professional representatives or advisors.
1. Non-Disclosure and Use of Evaluation Material. You hereby agree that the Evaluation Material will be kept confidential and used solely for the purpose of evaluating, considering,negotiating and/or implementing the Possible Transaction; provided, however, that the Evaluation Material may be disclosed (i) to any of your Representatives who need to know such information solely for the purpose of evaluating, considering,
negotiating and/or implementing a Possible Transaction, (ii) pursuant to an External Demand in accordance with paragraph 4 of this letter agreement and (iii) as the Company may otherwise consent in writing. All such Representatives shall (A) be informed by you of the confidential nature of the Evaluation Material, (B) agree to treat the Evaluation Material in accordance with this letter agreement, and (C) be advised of the terms of this letter agreement and directed to comply with the terms hereof to the same extent as if they were parties to this letter agreement. You agree to be responsible for any breaches of any of the provisions of this letter agreement by any of your Representatives (it being understood that such responsibility shall be in addition to and not by way of limitation of any right or remedy the Company may have against your Representatives with respect to such breach).
2. Securities Laws. You hereby acknowledge that you and your Representatives are aware, and will advise your Representatives, that the Evaluation Material may contain material, non-public information about the Company and that United States securities laws prohibit any person who has material, non-public information about a company from purchasing or selling any securities of the Company while in possession of such information.
3. Transaction Information. You will not, and will direct your Representatives not to, disclose to any person (except (i) to your Representatives who need to know such information for the purpose of evaluating, considering, negotiating and/or implementing a Possible Transaction and (ii) as the Company may otherwise consent in writing) either the fact that discussions or negotiations are taking place concerning the Possible Transaction or any of the terms, conditions or other facts with respect to the Possible Transaction, including the status thereof or that Evaluation Material has been made available to you (such information, “Transaction Information”); provided, however, that disclosure of Transaction Information pursuant to an External Demand shall be governed by paragraph 4 of this letter agreement; Without limiting the generality of the foregoing, you further agree that you will not share the Evaluation Material with or enter into any agreement, arrangement or understanding, or any discussions which would reasonably be expected to lead to an agreement, arrangement or understanding, with any other person, including other potential bidders and equity or debt financing sources (other than your Representatives as permitted above) regarding a Possible Transaction involving the Company without the prior written consent of the Company and only upon such person executing a confidentiality agreement in favor of the Company with terms and conditions substantially consistent with this letter agreement.
4. Required Disclosure. Notwithstanding anything to the contrary provided in this letter agreement, in the event you or any of your Representatives receive a request or are required by any law, rule, order, decree or regulation (including, without limitation, applicable securities or antitrust laws and applicable stock exchange rules) or any regulatory authority or legal, administrative or judicial process (including, without limitation, or by deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process or pursuant to a formal request from a regulatory examiner) (any such requested or required disclosure, an “External Demand”) to disclose all or any part of the Evaluation Material or the Transaction Information, you or your Representatives, as the case may be, agree, to the extent permissible and reasonably practicable, to (a) promptly notify the Company of the existence, terms and circumstances surrounding such External Demand or Permitted Disclosure and (b) assist the Company, at the Company’s request and expense, in seeking a protective order or other appropriate remedy to the extent available under the circumstances. In the event that such protective order or other remedy is not obtained or that the Company waives compliance with the provisions hereof, (i) you or your Representatives, as the case may be, may disclose only that portion of the Evaluation Material or Transaction Information which you or your Representatives are advised by counsel is required to be disclosed and to only those persons to whom you or your Representatives are advised by counsel are required to receive such information, and you or your Representatives shall exercise reasonable efforts to obtain assurance that confidential treatment will be accorded such Evaluation Material or Transaction Information, and (ii) you or your Representatives shall not be liable for such disclosure.
5. Communications and Requests. You agree that unless otherwise agreed to by the Company in writing, (a) all communications regarding the Possible Transaction, (b) requests for additional information regarding the Possible Transaction, (c) requests for facility tours or management meetings in connection with the Possible Transaction, and (d) discussions or questions regarding procedures, timing and terms of the Possible Transaction, will be submitted or directed exclusively to Andrew Weisenfeld ([email protected], 212-887-2102) of MTS Health Partners, L.P., the financial advisor to the Company or such other persons designated by the Company for such purpose.
6. Non-Solicit. You agree that, for a period of one year from the date of this letter agreement, neither you nor any of your Affiliates who are provided with Evaluation Material or become aware of your discussions regarding the Possible Transaction will, directly or indirectly, solicit for employment or employ (a) any individual serving as an executive officer of the Company, or (b) any employee of the Company or any of its subsidiaries with whom you have had substantial contact, or who is specifically identified to you (other than through a general roster of employees, general employee equity and compensation data or other employee data provided in due diligence that is general in nature), during your investigation of the Company and its business in connection with the Possible Transaction, in each case without obtaining the prior written consent of the Company; provided that you may (i) make general solicitations for employment not specifically directed at the Company or any of its subsidiaries or their respective employees and employ any person who responds to such solicitations, (ii) solicit and/or hire any person who contacts such party or its Affiliates on his or her own initiative without any initial direct or indirect solicitation or encouragement by such party or its Affiliates (other than as permitted by the preceding clause (i) and (iii) solicit and/or hire any person whose employment with the other party and its subsidiaries previously has been terminated for at least 90 days.
7. Standstill. You hereby acknowledge that, except as otherwise invited in writing by the Company’s Board of Directors or a Representative thereof or otherwise agreed in writing by the Company, for a period of one year from the date of this letter agreement (the “Standstill Period”), neither you nor any of your Affiliates who are provided with Evaluation Material will: (a) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase a substantial portion of the Company’s assets or businesses, or similar transactions involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company; (b) (i) acquire beneficial ownership of any voting securities (including in derivative form) of the Company (collectively, a transaction specified in (a)(i), (a)(ii) and (b)(i) involving a majority of the Company’s outstanding capital stock or consolidated assets, is referred to as a “Business Combination”), (ii) propose or seek, whether alone or in concert with others, any “solicitation” of “proxies” (as such terms are used in the rules of the Securities and Exchange Commission) or consents to vote any voting securities (including in derivative form) of the Company, (iii) nominate any person as a director of the Company, or (iv) propose any matter to be voted upon by the stockholders of the Company; (c) form, join or in any way participate in a third party “group” (as such term is used in the rules of the Securities and Exchange Commission) with respect to any voting securities (including in derivative form) of the Company or a Business Combination involving the Company; (d) request the Company (or any of its officers, directors or Representatives), directly or indirectly, to amend or waive any provision of this paragraph (including this sentence); or (e) take any action that would reasonably be expected to require the Company to make a public announcement regarding a potential Business Combination; provided, however, that nothing in this paragraph shall prohibit you from making a confidential proposal to the Company or the Company’s Board of Directors for a transaction involving a Business Combination (including a Possible Transaction) in a manner that would not reasonably be expected to require either party to make public disclosure with respect thereto.
Notwithstanding anything to the contrary in this letter agreement, the Standstill Period shall automatically terminate and cease to be of any further force and effect upon the earliest to occur of any of the following: (a) the Company publicly announcing its or its Board of Directors’ approval or recommendation of (A) any person or “group” (as such term is used in the rules of the Securities and Exchange Commission) commencing or publicly announcing an intention to commence a tender or exchange offer that, if consummated, would make such person or “group” (as such term is used in the rules of the Securities and Exchange Commission) (or any of their respective Affiliates) the beneficial owner (within the meaning of Section 13(d)(1) of the Exchange Act) of 50% or more of the Company’s equity securities, (B) an offer or proposal by any person or “group” (as such term is used in the rules of the Securities and Exchange Commission) which if effected would result in the acquisition (whether by merger, consolidation, recapitalization, liquidation or otherwise) by such person or “group” (as such term is used in the rules of the Securities and Exchange Commission) of 50% or more of such other party’s equity securities or a majority of the consolidated assets of the Company and its Affiliates (any such transaction, an “Acquisition Transaction”), or (C) any Acquisition Transaction, or (b) the Company entering into or publicly announcing its intention to enter into a definitive agreement with a third party to effectuate an Acquisition Transaction. Notwithstanding anything to the contrary in this letter agreement, you may own or acquire, or propose to acquire, any assets or securities of the Company in connection with a transaction subject to approval pursuant to proceedings under the United States Bankruptcy Code.
8. No Representation of Accuracy. Although the Company has endeavored to include in the Evaluation Material information which it believes to be relevant for the purpose of your investigation, you understand that none of the Company or its Representatives have made or make in this letter agreement any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material. You agree that none of the Company or its Representatives shall have any liability to you or any of your Representatives pursuant to this letter agreement resulting from the selection, use or content of the Evaluation Material by you or your Affiliates or Representatives. You further agree that you and your Representatives will be entitled to rely solely on such representations and warranties as may be included in a definitive agreement relating to a Possible Transaction, subject to such limitations and restrictions as may be contained therein.
9. Destruction or Return of Evaluation Material. You may determine not to pursue a Possible Transaction at any time and for any, or no, reason, and will promptly inform the Company at any time such a decision is made. Upon the Company’s demand, you shall, at your sole option, either promptly (a) destroy the Evaluation Material and any copies thereof, or (b) return to the Company all Evaluation Material and any copies thereof, and, in either case, confirm in writing to the Company that all such material has been destroyed or returned, as applicable, in compliance with this letter agreement. It is understood that information in an intangible or electronic format containing Evaluation Material cannot be removed, erased or otherwise deleted from archival systems (also known as “computer or system back-ups”) but that such information will continue to be protected under the confidentiality requirements and non-use limitations contained in this letter agreement, and you and your Representatives shall continue to be bound by the obligations of confidentiality and non-use hereunder. Notwithstanding the foregoing, you and your Representatives may retain one copy of any work product prepared by you or them that contains Evaluation Material to the extent necessary or advisable pursuant to applicable legal or regulatory requirements, professional standards or reasonable business practice; provided that you and such Representatives shall continue to be bound by the obligations of confidentiality and non-use hereunder with respect to such work product.
10. Injunctive Relief. You acknowledge and agree that money damages may not be a sufficient remedy for any breach of this letter agreement by you or your Representatives and that the Company shall be entitled to seek equitable relief, including injunction and specific performance, as a remedy for any such breach, without proof of damages, and each party further agrees to waive, and shall cause its Representatives to waive, any requirement for the securing or posting of any bond in connection with any such remedy. Such remedies shall not be the exclusive remedies for a breach of this letter agreement, but will be in addition to all other remedies available at law or in equity.
11. Definitive Agreement. You agree that unless and until a definitive agreement between the Company and you with respect to the Possible Transaction (a “Definitive Agreement”) has been executed and delivered, neither the Company nor you will be under any legal obligation of any kind whatsoever with respect to a Possible Transaction by virtue of this letter agreement or any other written or oral expression except, in the case of this letter agreement, for the matters specifically agreed to herein. In addition, you hereby waive, in advance, any claims (including, without limitation, breach of contract) in connection with any Possible Transaction other than claims under any Definitive Agreement relating to a Possible Transaction or under this letter agreement. For purposes of this letter agreement, the term “Definitive Agreement” does not include an executed letter of intent or any other preliminary written agreement, nor does it include any oral acceptance of an offer or bid by you. The agreement set forth in this paragraph may be modified or waived only by a separate writing by the Company and you expressly so modifying or waiving such agreement.
12. Process Agreements. You acknowledge that (a) the Company shall be free to conduct a process for a Possible Transaction as it in its sole discretion shall determine (including, without limitation, negotiating with any other prospective buyers and entering into a definitive agreement without prior notice to you or to any other person), and (b) any procedures relating to such Possible Transaction may be implemented or changed at any time prior to entry into a definitive agreement relating to such Possible Transaction without notice to you or any other person. The Company reserves the right at any time, in its sole discretion, for any reason or no reason, to reject any and all proposals made by you or any of your Representatives with regard to the Possible Transaction, to terminate discussions and negotiations with you, and to refuse to provide any further access to Evaluation Material. You further acknowledge that the Company has entered into an Agreement and Plan of Merger with REGENXBIO, Inc. and Muddy Charles Acquisition Corporation, dated August 24, 2017 (the “Merger Agreement”), and that you have read the Merger Agreement in its entirety, including Sections 5.3 and 5.4 therein. You agree that nothing in this letter agreement shall be deemed to restrict the Company’s ability to comply with the provisions of the Merger Agreement, including Sections 5.3 and 5.4 therein, and in the case of any inconsistency between this letter agreement and the Merger Agreement, the terms of the Merger Agreement shall control with respect to any action by the Company.
13. No Waiver. No failure or delay by the Company or any of its Representatives in exercising any right, power or privilege under this letter agreement shall operate as a waiver thereof, and no amendment, modification or waiver hereof shall be effective, unless in writing and signed by an officer or other authorized person of the Company hereto.
14. Severability. The illegality, invalidity or unenforceability of any provision hereof under the laws of any jurisdiction shall not affect its legality, validity or enforceability under the laws of any other jurisdiction, nor the legality, validity or enforceability of any other provision.
15. Governing Law and Forum. This letter agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware. The parties hereby irrevocably and unconditionally consent to the exclusive jurisdiction of the Chancery Courts in the State of Delaware and the United States District Court for the District of the State of Delaware for any action, suit or proceeding arising out of or relating to this letter agreement or the Possible Transaction, and agree not to commence any action, suit or proceeding related thereto except in such courts.
16. Counterparts. This letter agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute the same agreement. One or more counterparts of this letter agreement may be delivered by facsimile or pdf electronic transmission, with the intention that they shall have the same effect as an original counterpart hereof.
17. Term. This letter agreement shall terminate on the date that is two years following the date hereof.
Very truly yours,
Dimension Therapeutics, Inc.
By: /s/ Annalisa Jenkins, MBBS, FRCP
Name: Annalisa Jenkins, MBBS, FRCP
Title: President & Chief Executive Officer
Confirmed and Agreed to:
Ultragenyx Pharmaceutical Inc.
By: /s/ Shalini Sharp
Name: Shalini Sharp
Title: Chief Financial Officer
Date: September 19, 2017
| Entailment |
620_nda-20 | 620_nda-20_0 | Q: Receiving Party may retain some Confidential Information even after the return or destruction of Confidential Information.
Text: Exhibit (e)(2)
September 19, 2017
Ultragenyx Pharmaceutical Inc.
60 Leveroni Court
Novato, California 94949
Attention: Karah Parschauer, General Counsel
Ladies and Gentlemen:
In connection with your consideration of a possible negotiated business transaction involving Dimension Therapeutics, Inc. (the “Company”) and you (the “Possible Transaction”), and in order to evaluate, consider, negotiate and/or implement the Possible Transaction, you have requested information concerning the Company that is confidential and proprietary. As a condition to being furnished such confidential and proprietary information, you agree to treat any such information, whether written or oral, concerning the Company or any of its subsidiaries, Affiliates (as such term is defined in Rule 12b-2 of the Securities Exchange Act of 1934, as amended) or divisions (whether prepared by the Company, its advisors or otherwise) that is furnished on or after the date hereof to you by or on behalf of the Company (herein collectively referred to as the “Evaluation Material”) in accordance with the provisions of this letter agreement and to take or abstain from taking certain other actions herein set forth. The term “Evaluation Material” includes, without limitation, all notes, analyses, compilations, spreadsheets, data, reports, studies, interpretations or other documents furnished by or on behalf of the Company to you or your Representatives (as defined below) or prepared by you or your Representatives, to the extent such materials reflect or are based upon the Evaluation Material. The term “Evaluation Material” does not include information that (a) is or becomes available to you on a nonconfidential basis from a source other than the Company or its Representatives; provided that such source is not known by you to be bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation to, the Company that prohibits such disclosure, (b) is or becomes available to the public other than as a result of a disclosure by you or your Representatives in violation of this letter agreement, (c) you can demonstrate is in your possession or the possession of your Representatives prior to receipt from the Company or its Representatives pursuant to this letter agreement, or (d) has been or is independently developed by you or your Representatives without the use of the Evaluation Material or in violation of the terms of this letter agreement. For purposes of this letter agreement the term “Representatives” shall include any person, its Affiliates and such person’s and its Affiliates’ respective directors, officers, employees, agents, attorneys, accountants, financial advisors and other professional representatives or advisors.
1. Non-Disclosure and Use of Evaluation Material. You hereby agree that the Evaluation Material will be kept confidential and used solely for the purpose of evaluating, considering,negotiating and/or implementing the Possible Transaction; provided, however, that the Evaluation Material may be disclosed (i) to any of your Representatives who need to know such information solely for the purpose of evaluating, considering,
negotiating and/or implementing a Possible Transaction, (ii) pursuant to an External Demand in accordance with paragraph 4 of this letter agreement and (iii) as the Company may otherwise consent in writing. All such Representatives shall (A) be informed by you of the confidential nature of the Evaluation Material, (B) agree to treat the Evaluation Material in accordance with this letter agreement, and (C) be advised of the terms of this letter agreement and directed to comply with the terms hereof to the same extent as if they were parties to this letter agreement. You agree to be responsible for any breaches of any of the provisions of this letter agreement by any of your Representatives (it being understood that such responsibility shall be in addition to and not by way of limitation of any right or remedy the Company may have against your Representatives with respect to such breach).
2. Securities Laws. You hereby acknowledge that you and your Representatives are aware, and will advise your Representatives, that the Evaluation Material may contain material, non-public information about the Company and that United States securities laws prohibit any person who has material, non-public information about a company from purchasing or selling any securities of the Company while in possession of such information.
3. Transaction Information. You will not, and will direct your Representatives not to, disclose to any person (except (i) to your Representatives who need to know such information for the purpose of evaluating, considering, negotiating and/or implementing a Possible Transaction and (ii) as the Company may otherwise consent in writing) either the fact that discussions or negotiations are taking place concerning the Possible Transaction or any of the terms, conditions or other facts with respect to the Possible Transaction, including the status thereof or that Evaluation Material has been made available to you (such information, “Transaction Information”); provided, however, that disclosure of Transaction Information pursuant to an External Demand shall be governed by paragraph 4 of this letter agreement; Without limiting the generality of the foregoing, you further agree that you will not share the Evaluation Material with or enter into any agreement, arrangement or understanding, or any discussions which would reasonably be expected to lead to an agreement, arrangement or understanding, with any other person, including other potential bidders and equity or debt financing sources (other than your Representatives as permitted above) regarding a Possible Transaction involving the Company without the prior written consent of the Company and only upon such person executing a confidentiality agreement in favor of the Company with terms and conditions substantially consistent with this letter agreement.
4. Required Disclosure. Notwithstanding anything to the contrary provided in this letter agreement, in the event you or any of your Representatives receive a request or are required by any law, rule, order, decree or regulation (including, without limitation, applicable securities or antitrust laws and applicable stock exchange rules) or any regulatory authority or legal, administrative or judicial process (including, without limitation, or by deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process or pursuant to a formal request from a regulatory examiner) (any such requested or required disclosure, an “External Demand”) to disclose all or any part of the Evaluation Material or the Transaction Information, you or your Representatives, as the case may be, agree, to the extent permissible and reasonably practicable, to (a) promptly notify the Company of the existence, terms and circumstances surrounding such External Demand or Permitted Disclosure and (b) assist the Company, at the Company’s request and expense, in seeking a protective order or other appropriate remedy to the extent available under the circumstances. In the event that such protective order or other remedy is not obtained or that the Company waives compliance with the provisions hereof, (i) you or your Representatives, as the case may be, may disclose only that portion of the Evaluation Material or Transaction Information which you or your Representatives are advised by counsel is required to be disclosed and to only those persons to whom you or your Representatives are advised by counsel are required to receive such information, and you or your Representatives shall exercise reasonable efforts to obtain assurance that confidential treatment will be accorded such Evaluation Material or Transaction Information, and (ii) you or your Representatives shall not be liable for such disclosure.
5. Communications and Requests. You agree that unless otherwise agreed to by the Company in writing, (a) all communications regarding the Possible Transaction, (b) requests for additional information regarding the Possible Transaction, (c) requests for facility tours or management meetings in connection with the Possible Transaction, and (d) discussions or questions regarding procedures, timing and terms of the Possible Transaction, will be submitted or directed exclusively to Andrew Weisenfeld ([email protected], 212-887-2102) of MTS Health Partners, L.P., the financial advisor to the Company or such other persons designated by the Company for such purpose.
6. Non-Solicit. You agree that, for a period of one year from the date of this letter agreement, neither you nor any of your Affiliates who are provided with Evaluation Material or become aware of your discussions regarding the Possible Transaction will, directly or indirectly, solicit for employment or employ (a) any individual serving as an executive officer of the Company, or (b) any employee of the Company or any of its subsidiaries with whom you have had substantial contact, or who is specifically identified to you (other than through a general roster of employees, general employee equity and compensation data or other employee data provided in due diligence that is general in nature), during your investigation of the Company and its business in connection with the Possible Transaction, in each case without obtaining the prior written consent of the Company; provided that you may (i) make general solicitations for employment not specifically directed at the Company or any of its subsidiaries or their respective employees and employ any person who responds to such solicitations, (ii) solicit and/or hire any person who contacts such party or its Affiliates on his or her own initiative without any initial direct or indirect solicitation or encouragement by such party or its Affiliates (other than as permitted by the preceding clause (i) and (iii) solicit and/or hire any person whose employment with the other party and its subsidiaries previously has been terminated for at least 90 days.
7. Standstill. You hereby acknowledge that, except as otherwise invited in writing by the Company’s Board of Directors or a Representative thereof or otherwise agreed in writing by the Company, for a period of one year from the date of this letter agreement (the “Standstill Period”), neither you nor any of your Affiliates who are provided with Evaluation Material will: (a) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase a substantial portion of the Company’s assets or businesses, or similar transactions involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company; (b) (i) acquire beneficial ownership of any voting securities (including in derivative form) of the Company (collectively, a transaction specified in (a)(i), (a)(ii) and (b)(i) involving a majority of the Company’s outstanding capital stock or consolidated assets, is referred to as a “Business Combination”), (ii) propose or seek, whether alone or in concert with others, any “solicitation” of “proxies” (as such terms are used in the rules of the Securities and Exchange Commission) or consents to vote any voting securities (including in derivative form) of the Company, (iii) nominate any person as a director of the Company, or (iv) propose any matter to be voted upon by the stockholders of the Company; (c) form, join or in any way participate in a third party “group” (as such term is used in the rules of the Securities and Exchange Commission) with respect to any voting securities (including in derivative form) of the Company or a Business Combination involving the Company; (d) request the Company (or any of its officers, directors or Representatives), directly or indirectly, to amend or waive any provision of this paragraph (including this sentence); or (e) take any action that would reasonably be expected to require the Company to make a public announcement regarding a potential Business Combination; provided, however, that nothing in this paragraph shall prohibit you from making a confidential proposal to the Company or the Company’s Board of Directors for a transaction involving a Business Combination (including a Possible Transaction) in a manner that would not reasonably be expected to require either party to make public disclosure with respect thereto.
Notwithstanding anything to the contrary in this letter agreement, the Standstill Period shall automatically terminate and cease to be of any further force and effect upon the earliest to occur of any of the following: (a) the Company publicly announcing its or its Board of Directors’ approval or recommendation of (A) any person or “group” (as such term is used in the rules of the Securities and Exchange Commission) commencing or publicly announcing an intention to commence a tender or exchange offer that, if consummated, would make such person or “group” (as such term is used in the rules of the Securities and Exchange Commission) (or any of their respective Affiliates) the beneficial owner (within the meaning of Section 13(d)(1) of the Exchange Act) of 50% or more of the Company’s equity securities, (B) an offer or proposal by any person or “group” (as such term is used in the rules of the Securities and Exchange Commission) which if effected would result in the acquisition (whether by merger, consolidation, recapitalization, liquidation or otherwise) by such person or “group” (as such term is used in the rules of the Securities and Exchange Commission) of 50% or more of such other party’s equity securities or a majority of the consolidated assets of the Company and its Affiliates (any such transaction, an “Acquisition Transaction”), or (C) any Acquisition Transaction, or (b) the Company entering into or publicly announcing its intention to enter into a definitive agreement with a third party to effectuate an Acquisition Transaction. Notwithstanding anything to the contrary in this letter agreement, you may own or acquire, or propose to acquire, any assets or securities of the Company in connection with a transaction subject to approval pursuant to proceedings under the United States Bankruptcy Code.
8. No Representation of Accuracy. Although the Company has endeavored to include in the Evaluation Material information which it believes to be relevant for the purpose of your investigation, you understand that none of the Company or its Representatives have made or make in this letter agreement any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material. You agree that none of the Company or its Representatives shall have any liability to you or any of your Representatives pursuant to this letter agreement resulting from the selection, use or content of the Evaluation Material by you or your Affiliates or Representatives. You further agree that you and your Representatives will be entitled to rely solely on such representations and warranties as may be included in a definitive agreement relating to a Possible Transaction, subject to such limitations and restrictions as may be contained therein.
9. Destruction or Return of Evaluation Material. You may determine not to pursue a Possible Transaction at any time and for any, or no, reason, and will promptly inform the Company at any time such a decision is made. Upon the Company’s demand, you shall, at your sole option, either promptly (a) destroy the Evaluation Material and any copies thereof, or (b) return to the Company all Evaluation Material and any copies thereof, and, in either case, confirm in writing to the Company that all such material has been destroyed or returned, as applicable, in compliance with this letter agreement. It is understood that information in an intangible or electronic format containing Evaluation Material cannot be removed, erased or otherwise deleted from archival systems (also known as “computer or system back-ups”) but that such information will continue to be protected under the confidentiality requirements and non-use limitations contained in this letter agreement, and you and your Representatives shall continue to be bound by the obligations of confidentiality and non-use hereunder. Notwithstanding the foregoing, you and your Representatives may retain one copy of any work product prepared by you or them that contains Evaluation Material to the extent necessary or advisable pursuant to applicable legal or regulatory requirements, professional standards or reasonable business practice; provided that you and such Representatives shall continue to be bound by the obligations of confidentiality and non-use hereunder with respect to such work product.
10. Injunctive Relief. You acknowledge and agree that money damages may not be a sufficient remedy for any breach of this letter agreement by you or your Representatives and that the Company shall be entitled to seek equitable relief, including injunction and specific performance, as a remedy for any such breach, without proof of damages, and each party further agrees to waive, and shall cause its Representatives to waive, any requirement for the securing or posting of any bond in connection with any such remedy. Such remedies shall not be the exclusive remedies for a breach of this letter agreement, but will be in addition to all other remedies available at law or in equity.
11. Definitive Agreement. You agree that unless and until a definitive agreement between the Company and you with respect to the Possible Transaction (a “Definitive Agreement”) has been executed and delivered, neither the Company nor you will be under any legal obligation of any kind whatsoever with respect to a Possible Transaction by virtue of this letter agreement or any other written or oral expression except, in the case of this letter agreement, for the matters specifically agreed to herein. In addition, you hereby waive, in advance, any claims (including, without limitation, breach of contract) in connection with any Possible Transaction other than claims under any Definitive Agreement relating to a Possible Transaction or under this letter agreement. For purposes of this letter agreement, the term “Definitive Agreement” does not include an executed letter of intent or any other preliminary written agreement, nor does it include any oral acceptance of an offer or bid by you. The agreement set forth in this paragraph may be modified or waived only by a separate writing by the Company and you expressly so modifying or waiving such agreement.
12. Process Agreements. You acknowledge that (a) the Company shall be free to conduct a process for a Possible Transaction as it in its sole discretion shall determine (including, without limitation, negotiating with any other prospective buyers and entering into a definitive agreement without prior notice to you or to any other person), and (b) any procedures relating to such Possible Transaction may be implemented or changed at any time prior to entry into a definitive agreement relating to such Possible Transaction without notice to you or any other person. The Company reserves the right at any time, in its sole discretion, for any reason or no reason, to reject any and all proposals made by you or any of your Representatives with regard to the Possible Transaction, to terminate discussions and negotiations with you, and to refuse to provide any further access to Evaluation Material. You further acknowledge that the Company has entered into an Agreement and Plan of Merger with REGENXBIO, Inc. and Muddy Charles Acquisition Corporation, dated August 24, 2017 (the “Merger Agreement”), and that you have read the Merger Agreement in its entirety, including Sections 5.3 and 5.4 therein. You agree that nothing in this letter agreement shall be deemed to restrict the Company’s ability to comply with the provisions of the Merger Agreement, including Sections 5.3 and 5.4 therein, and in the case of any inconsistency between this letter agreement and the Merger Agreement, the terms of the Merger Agreement shall control with respect to any action by the Company.
13. No Waiver. No failure or delay by the Company or any of its Representatives in exercising any right, power or privilege under this letter agreement shall operate as a waiver thereof, and no amendment, modification or waiver hereof shall be effective, unless in writing and signed by an officer or other authorized person of the Company hereto.
14. Severability. The illegality, invalidity or unenforceability of any provision hereof under the laws of any jurisdiction shall not affect its legality, validity or enforceability under the laws of any other jurisdiction, nor the legality, validity or enforceability of any other provision.
15. Governing Law and Forum. This letter agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware. The parties hereby irrevocably and unconditionally consent to the exclusive jurisdiction of the Chancery Courts in the State of Delaware and the United States District Court for the District of the State of Delaware for any action, suit or proceeding arising out of or relating to this letter agreement or the Possible Transaction, and agree not to commence any action, suit or proceeding related thereto except in such courts.
16. Counterparts. This letter agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute the same agreement. One or more counterparts of this letter agreement may be delivered by facsimile or pdf electronic transmission, with the intention that they shall have the same effect as an original counterpart hereof.
17. Term. This letter agreement shall terminate on the date that is two years following the date hereof.
Very truly yours,
Dimension Therapeutics, Inc.
By: /s/ Annalisa Jenkins, MBBS, FRCP
Name: Annalisa Jenkins, MBBS, FRCP
Title: President & Chief Executive Officer
Confirmed and Agreed to:
Ultragenyx Pharmaceutical Inc.
By: /s/ Shalini Sharp
Name: Shalini Sharp
Title: Chief Financial Officer
Date: September 19, 2017
| Entailment |
620_nda-3 | 620_nda-3_0 | Q: Confidential Information may include verbally conveyed information.
Text: Exhibit (e)(2)
September 19, 2017
Ultragenyx Pharmaceutical Inc.
60 Leveroni Court
Novato, California 94949
Attention: Karah Parschauer, General Counsel
Ladies and Gentlemen:
In connection with your consideration of a possible negotiated business transaction involving Dimension Therapeutics, Inc. (the “Company”) and you (the “Possible Transaction”), and in order to evaluate, consider, negotiate and/or implement the Possible Transaction, you have requested information concerning the Company that is confidential and proprietary. As a condition to being furnished such confidential and proprietary information, you agree to treat any such information, whether written or oral, concerning the Company or any of its subsidiaries, Affiliates (as such term is defined in Rule 12b-2 of the Securities Exchange Act of 1934, as amended) or divisions (whether prepared by the Company, its advisors or otherwise) that is furnished on or after the date hereof to you by or on behalf of the Company (herein collectively referred to as the “Evaluation Material”) in accordance with the provisions of this letter agreement and to take or abstain from taking certain other actions herein set forth. The term “Evaluation Material” includes, without limitation, all notes, analyses, compilations, spreadsheets, data, reports, studies, interpretations or other documents furnished by or on behalf of the Company to you or your Representatives (as defined below) or prepared by you or your Representatives, to the extent such materials reflect or are based upon the Evaluation Material. The term “Evaluation Material” does not include information that (a) is or becomes available to you on a nonconfidential basis from a source other than the Company or its Representatives; provided that such source is not known by you to be bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation to, the Company that prohibits such disclosure, (b) is or becomes available to the public other than as a result of a disclosure by you or your Representatives in violation of this letter agreement, (c) you can demonstrate is in your possession or the possession of your Representatives prior to receipt from the Company or its Representatives pursuant to this letter agreement, or (d) has been or is independently developed by you or your Representatives without the use of the Evaluation Material or in violation of the terms of this letter agreement. For purposes of this letter agreement the term “Representatives” shall include any person, its Affiliates and such person’s and its Affiliates’ respective directors, officers, employees, agents, attorneys, accountants, financial advisors and other professional representatives or advisors.
1. Non-Disclosure and Use of Evaluation Material. You hereby agree that the Evaluation Material will be kept confidential and used solely for the purpose of evaluating, considering,negotiating and/or implementing the Possible Transaction; provided, however, that the Evaluation Material may be disclosed (i) to any of your Representatives who need to know such information solely for the purpose of evaluating, considering,
negotiating and/or implementing a Possible Transaction, (ii) pursuant to an External Demand in accordance with paragraph 4 of this letter agreement and (iii) as the Company may otherwise consent in writing. All such Representatives shall (A) be informed by you of the confidential nature of the Evaluation Material, (B) agree to treat the Evaluation Material in accordance with this letter agreement, and (C) be advised of the terms of this letter agreement and directed to comply with the terms hereof to the same extent as if they were parties to this letter agreement. You agree to be responsible for any breaches of any of the provisions of this letter agreement by any of your Representatives (it being understood that such responsibility shall be in addition to and not by way of limitation of any right or remedy the Company may have against your Representatives with respect to such breach).
2. Securities Laws. You hereby acknowledge that you and your Representatives are aware, and will advise your Representatives, that the Evaluation Material may contain material, non-public information about the Company and that United States securities laws prohibit any person who has material, non-public information about a company from purchasing or selling any securities of the Company while in possession of such information.
3. Transaction Information. You will not, and will direct your Representatives not to, disclose to any person (except (i) to your Representatives who need to know such information for the purpose of evaluating, considering, negotiating and/or implementing a Possible Transaction and (ii) as the Company may otherwise consent in writing) either the fact that discussions or negotiations are taking place concerning the Possible Transaction or any of the terms, conditions or other facts with respect to the Possible Transaction, including the status thereof or that Evaluation Material has been made available to you (such information, “Transaction Information”); provided, however, that disclosure of Transaction Information pursuant to an External Demand shall be governed by paragraph 4 of this letter agreement; Without limiting the generality of the foregoing, you further agree that you will not share the Evaluation Material with or enter into any agreement, arrangement or understanding, or any discussions which would reasonably be expected to lead to an agreement, arrangement or understanding, with any other person, including other potential bidders and equity or debt financing sources (other than your Representatives as permitted above) regarding a Possible Transaction involving the Company without the prior written consent of the Company and only upon such person executing a confidentiality agreement in favor of the Company with terms and conditions substantially consistent with this letter agreement.
4. Required Disclosure. Notwithstanding anything to the contrary provided in this letter agreement, in the event you or any of your Representatives receive a request or are required by any law, rule, order, decree or regulation (including, without limitation, applicable securities or antitrust laws and applicable stock exchange rules) or any regulatory authority or legal, administrative or judicial process (including, without limitation, or by deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process or pursuant to a formal request from a regulatory examiner) (any such requested or required disclosure, an “External Demand”) to disclose all or any part of the Evaluation Material or the Transaction Information, you or your Representatives, as the case may be, agree, to the extent permissible and reasonably practicable, to (a) promptly notify the Company of the existence, terms and circumstances surrounding such External Demand or Permitted Disclosure and (b) assist the Company, at the Company’s request and expense, in seeking a protective order or other appropriate remedy to the extent available under the circumstances. In the event that such protective order or other remedy is not obtained or that the Company waives compliance with the provisions hereof, (i) you or your Representatives, as the case may be, may disclose only that portion of the Evaluation Material or Transaction Information which you or your Representatives are advised by counsel is required to be disclosed and to only those persons to whom you or your Representatives are advised by counsel are required to receive such information, and you or your Representatives shall exercise reasonable efforts to obtain assurance that confidential treatment will be accorded such Evaluation Material or Transaction Information, and (ii) you or your Representatives shall not be liable for such disclosure.
5. Communications and Requests. You agree that unless otherwise agreed to by the Company in writing, (a) all communications regarding the Possible Transaction, (b) requests for additional information regarding the Possible Transaction, (c) requests for facility tours or management meetings in connection with the Possible Transaction, and (d) discussions or questions regarding procedures, timing and terms of the Possible Transaction, will be submitted or directed exclusively to Andrew Weisenfeld ([email protected], 212-887-2102) of MTS Health Partners, L.P., the financial advisor to the Company or such other persons designated by the Company for such purpose.
6. Non-Solicit. You agree that, for a period of one year from the date of this letter agreement, neither you nor any of your Affiliates who are provided with Evaluation Material or become aware of your discussions regarding the Possible Transaction will, directly or indirectly, solicit for employment or employ (a) any individual serving as an executive officer of the Company, or (b) any employee of the Company or any of its subsidiaries with whom you have had substantial contact, or who is specifically identified to you (other than through a general roster of employees, general employee equity and compensation data or other employee data provided in due diligence that is general in nature), during your investigation of the Company and its business in connection with the Possible Transaction, in each case without obtaining the prior written consent of the Company; provided that you may (i) make general solicitations for employment not specifically directed at the Company or any of its subsidiaries or their respective employees and employ any person who responds to such solicitations, (ii) solicit and/or hire any person who contacts such party or its Affiliates on his or her own initiative without any initial direct or indirect solicitation or encouragement by such party or its Affiliates (other than as permitted by the preceding clause (i) and (iii) solicit and/or hire any person whose employment with the other party and its subsidiaries previously has been terminated for at least 90 days.
7. Standstill. You hereby acknowledge that, except as otherwise invited in writing by the Company’s Board of Directors or a Representative thereof or otherwise agreed in writing by the Company, for a period of one year from the date of this letter agreement (the “Standstill Period”), neither you nor any of your Affiliates who are provided with Evaluation Material will: (a) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase a substantial portion of the Company’s assets or businesses, or similar transactions involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company; (b) (i) acquire beneficial ownership of any voting securities (including in derivative form) of the Company (collectively, a transaction specified in (a)(i), (a)(ii) and (b)(i) involving a majority of the Company’s outstanding capital stock or consolidated assets, is referred to as a “Business Combination”), (ii) propose or seek, whether alone or in concert with others, any “solicitation” of “proxies” (as such terms are used in the rules of the Securities and Exchange Commission) or consents to vote any voting securities (including in derivative form) of the Company, (iii) nominate any person as a director of the Company, or (iv) propose any matter to be voted upon by the stockholders of the Company; (c) form, join or in any way participate in a third party “group” (as such term is used in the rules of the Securities and Exchange Commission) with respect to any voting securities (including in derivative form) of the Company or a Business Combination involving the Company; (d) request the Company (or any of its officers, directors or Representatives), directly or indirectly, to amend or waive any provision of this paragraph (including this sentence); or (e) take any action that would reasonably be expected to require the Company to make a public announcement regarding a potential Business Combination; provided, however, that nothing in this paragraph shall prohibit you from making a confidential proposal to the Company or the Company’s Board of Directors for a transaction involving a Business Combination (including a Possible Transaction) in a manner that would not reasonably be expected to require either party to make public disclosure with respect thereto.
Notwithstanding anything to the contrary in this letter agreement, the Standstill Period shall automatically terminate and cease to be of any further force and effect upon the earliest to occur of any of the following: (a) the Company publicly announcing its or its Board of Directors’ approval or recommendation of (A) any person or “group” (as such term is used in the rules of the Securities and Exchange Commission) commencing or publicly announcing an intention to commence a tender or exchange offer that, if consummated, would make such person or “group” (as such term is used in the rules of the Securities and Exchange Commission) (or any of their respective Affiliates) the beneficial owner (within the meaning of Section 13(d)(1) of the Exchange Act) of 50% or more of the Company’s equity securities, (B) an offer or proposal by any person or “group” (as such term is used in the rules of the Securities and Exchange Commission) which if effected would result in the acquisition (whether by merger, consolidation, recapitalization, liquidation or otherwise) by such person or “group” (as such term is used in the rules of the Securities and Exchange Commission) of 50% or more of such other party’s equity securities or a majority of the consolidated assets of the Company and its Affiliates (any such transaction, an “Acquisition Transaction”), or (C) any Acquisition Transaction, or (b) the Company entering into or publicly announcing its intention to enter into a definitive agreement with a third party to effectuate an Acquisition Transaction. Notwithstanding anything to the contrary in this letter agreement, you may own or acquire, or propose to acquire, any assets or securities of the Company in connection with a transaction subject to approval pursuant to proceedings under the United States Bankruptcy Code.
8. No Representation of Accuracy. Although the Company has endeavored to include in the Evaluation Material information which it believes to be relevant for the purpose of your investigation, you understand that none of the Company or its Representatives have made or make in this letter agreement any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material. You agree that none of the Company or its Representatives shall have any liability to you or any of your Representatives pursuant to this letter agreement resulting from the selection, use or content of the Evaluation Material by you or your Affiliates or Representatives. You further agree that you and your Representatives will be entitled to rely solely on such representations and warranties as may be included in a definitive agreement relating to a Possible Transaction, subject to such limitations and restrictions as may be contained therein.
9. Destruction or Return of Evaluation Material. You may determine not to pursue a Possible Transaction at any time and for any, or no, reason, and will promptly inform the Company at any time such a decision is made. Upon the Company’s demand, you shall, at your sole option, either promptly (a) destroy the Evaluation Material and any copies thereof, or (b) return to the Company all Evaluation Material and any copies thereof, and, in either case, confirm in writing to the Company that all such material has been destroyed or returned, as applicable, in compliance with this letter agreement. It is understood that information in an intangible or electronic format containing Evaluation Material cannot be removed, erased or otherwise deleted from archival systems (also known as “computer or system back-ups”) but that such information will continue to be protected under the confidentiality requirements and non-use limitations contained in this letter agreement, and you and your Representatives shall continue to be bound by the obligations of confidentiality and non-use hereunder. Notwithstanding the foregoing, you and your Representatives may retain one copy of any work product prepared by you or them that contains Evaluation Material to the extent necessary or advisable pursuant to applicable legal or regulatory requirements, professional standards or reasonable business practice; provided that you and such Representatives shall continue to be bound by the obligations of confidentiality and non-use hereunder with respect to such work product.
10. Injunctive Relief. You acknowledge and agree that money damages may not be a sufficient remedy for any breach of this letter agreement by you or your Representatives and that the Company shall be entitled to seek equitable relief, including injunction and specific performance, as a remedy for any such breach, without proof of damages, and each party further agrees to waive, and shall cause its Representatives to waive, any requirement for the securing or posting of any bond in connection with any such remedy. Such remedies shall not be the exclusive remedies for a breach of this letter agreement, but will be in addition to all other remedies available at law or in equity.
11. Definitive Agreement. You agree that unless and until a definitive agreement between the Company and you with respect to the Possible Transaction (a “Definitive Agreement”) has been executed and delivered, neither the Company nor you will be under any legal obligation of any kind whatsoever with respect to a Possible Transaction by virtue of this letter agreement or any other written or oral expression except, in the case of this letter agreement, for the matters specifically agreed to herein. In addition, you hereby waive, in advance, any claims (including, without limitation, breach of contract) in connection with any Possible Transaction other than claims under any Definitive Agreement relating to a Possible Transaction or under this letter agreement. For purposes of this letter agreement, the term “Definitive Agreement” does not include an executed letter of intent or any other preliminary written agreement, nor does it include any oral acceptance of an offer or bid by you. The agreement set forth in this paragraph may be modified or waived only by a separate writing by the Company and you expressly so modifying or waiving such agreement.
12. Process Agreements. You acknowledge that (a) the Company shall be free to conduct a process for a Possible Transaction as it in its sole discretion shall determine (including, without limitation, negotiating with any other prospective buyers and entering into a definitive agreement without prior notice to you or to any other person), and (b) any procedures relating to such Possible Transaction may be implemented or changed at any time prior to entry into a definitive agreement relating to such Possible Transaction without notice to you or any other person. The Company reserves the right at any time, in its sole discretion, for any reason or no reason, to reject any and all proposals made by you or any of your Representatives with regard to the Possible Transaction, to terminate discussions and negotiations with you, and to refuse to provide any further access to Evaluation Material. You further acknowledge that the Company has entered into an Agreement and Plan of Merger with REGENXBIO, Inc. and Muddy Charles Acquisition Corporation, dated August 24, 2017 (the “Merger Agreement”), and that you have read the Merger Agreement in its entirety, including Sections 5.3 and 5.4 therein. You agree that nothing in this letter agreement shall be deemed to restrict the Company’s ability to comply with the provisions of the Merger Agreement, including Sections 5.3 and 5.4 therein, and in the case of any inconsistency between this letter agreement and the Merger Agreement, the terms of the Merger Agreement shall control with respect to any action by the Company.
13. No Waiver. No failure or delay by the Company or any of its Representatives in exercising any right, power or privilege under this letter agreement shall operate as a waiver thereof, and no amendment, modification or waiver hereof shall be effective, unless in writing and signed by an officer or other authorized person of the Company hereto.
14. Severability. The illegality, invalidity or unenforceability of any provision hereof under the laws of any jurisdiction shall not affect its legality, validity or enforceability under the laws of any other jurisdiction, nor the legality, validity or enforceability of any other provision.
15. Governing Law and Forum. This letter agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware. The parties hereby irrevocably and unconditionally consent to the exclusive jurisdiction of the Chancery Courts in the State of Delaware and the United States District Court for the District of the State of Delaware for any action, suit or proceeding arising out of or relating to this letter agreement or the Possible Transaction, and agree not to commence any action, suit or proceeding related thereto except in such courts.
16. Counterparts. This letter agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute the same agreement. One or more counterparts of this letter agreement may be delivered by facsimile or pdf electronic transmission, with the intention that they shall have the same effect as an original counterpart hereof.
17. Term. This letter agreement shall terminate on the date that is two years following the date hereof.
Very truly yours,
Dimension Therapeutics, Inc.
By: /s/ Annalisa Jenkins, MBBS, FRCP
Name: Annalisa Jenkins, MBBS, FRCP
Title: President & Chief Executive Officer
Confirmed and Agreed to:
Ultragenyx Pharmaceutical Inc.
By: /s/ Shalini Sharp
Name: Shalini Sharp
Title: Chief Financial Officer
Date: September 19, 2017
| Entailment |
620_nda-18 | 620_nda-18_0 | Q: Receiving Party shall not solicit some of Disclosing Party's representatives.
Text: Exhibit (e)(2)
September 19, 2017
Ultragenyx Pharmaceutical Inc.
60 Leveroni Court
Novato, California 94949
Attention: Karah Parschauer, General Counsel
Ladies and Gentlemen:
In connection with your consideration of a possible negotiated business transaction involving Dimension Therapeutics, Inc. (the “Company”) and you (the “Possible Transaction”), and in order to evaluate, consider, negotiate and/or implement the Possible Transaction, you have requested information concerning the Company that is confidential and proprietary. As a condition to being furnished such confidential and proprietary information, you agree to treat any such information, whether written or oral, concerning the Company or any of its subsidiaries, Affiliates (as such term is defined in Rule 12b-2 of the Securities Exchange Act of 1934, as amended) or divisions (whether prepared by the Company, its advisors or otherwise) that is furnished on or after the date hereof to you by or on behalf of the Company (herein collectively referred to as the “Evaluation Material”) in accordance with the provisions of this letter agreement and to take or abstain from taking certain other actions herein set forth. The term “Evaluation Material” includes, without limitation, all notes, analyses, compilations, spreadsheets, data, reports, studies, interpretations or other documents furnished by or on behalf of the Company to you or your Representatives (as defined below) or prepared by you or your Representatives, to the extent such materials reflect or are based upon the Evaluation Material. The term “Evaluation Material” does not include information that (a) is or becomes available to you on a nonconfidential basis from a source other than the Company or its Representatives; provided that such source is not known by you to be bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation to, the Company that prohibits such disclosure, (b) is or becomes available to the public other than as a result of a disclosure by you or your Representatives in violation of this letter agreement, (c) you can demonstrate is in your possession or the possession of your Representatives prior to receipt from the Company or its Representatives pursuant to this letter agreement, or (d) has been or is independently developed by you or your Representatives without the use of the Evaluation Material or in violation of the terms of this letter agreement. For purposes of this letter agreement the term “Representatives” shall include any person, its Affiliates and such person’s and its Affiliates’ respective directors, officers, employees, agents, attorneys, accountants, financial advisors and other professional representatives or advisors.
1. Non-Disclosure and Use of Evaluation Material. You hereby agree that the Evaluation Material will be kept confidential and used solely for the purpose of evaluating, considering,negotiating and/or implementing the Possible Transaction; provided, however, that the Evaluation Material may be disclosed (i) to any of your Representatives who need to know such information solely for the purpose of evaluating, considering,
negotiating and/or implementing a Possible Transaction, (ii) pursuant to an External Demand in accordance with paragraph 4 of this letter agreement and (iii) as the Company may otherwise consent in writing. All such Representatives shall (A) be informed by you of the confidential nature of the Evaluation Material, (B) agree to treat the Evaluation Material in accordance with this letter agreement, and (C) be advised of the terms of this letter agreement and directed to comply with the terms hereof to the same extent as if they were parties to this letter agreement. You agree to be responsible for any breaches of any of the provisions of this letter agreement by any of your Representatives (it being understood that such responsibility shall be in addition to and not by way of limitation of any right or remedy the Company may have against your Representatives with respect to such breach).
2. Securities Laws. You hereby acknowledge that you and your Representatives are aware, and will advise your Representatives, that the Evaluation Material may contain material, non-public information about the Company and that United States securities laws prohibit any person who has material, non-public information about a company from purchasing or selling any securities of the Company while in possession of such information.
3. Transaction Information. You will not, and will direct your Representatives not to, disclose to any person (except (i) to your Representatives who need to know such information for the purpose of evaluating, considering, negotiating and/or implementing a Possible Transaction and (ii) as the Company may otherwise consent in writing) either the fact that discussions or negotiations are taking place concerning the Possible Transaction or any of the terms, conditions or other facts with respect to the Possible Transaction, including the status thereof or that Evaluation Material has been made available to you (such information, “Transaction Information”); provided, however, that disclosure of Transaction Information pursuant to an External Demand shall be governed by paragraph 4 of this letter agreement; Without limiting the generality of the foregoing, you further agree that you will not share the Evaluation Material with or enter into any agreement, arrangement or understanding, or any discussions which would reasonably be expected to lead to an agreement, arrangement or understanding, with any other person, including other potential bidders and equity or debt financing sources (other than your Representatives as permitted above) regarding a Possible Transaction involving the Company without the prior written consent of the Company and only upon such person executing a confidentiality agreement in favor of the Company with terms and conditions substantially consistent with this letter agreement.
4. Required Disclosure. Notwithstanding anything to the contrary provided in this letter agreement, in the event you or any of your Representatives receive a request or are required by any law, rule, order, decree or regulation (including, without limitation, applicable securities or antitrust laws and applicable stock exchange rules) or any regulatory authority or legal, administrative or judicial process (including, without limitation, or by deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process or pursuant to a formal request from a regulatory examiner) (any such requested or required disclosure, an “External Demand”) to disclose all or any part of the Evaluation Material or the Transaction Information, you or your Representatives, as the case may be, agree, to the extent permissible and reasonably practicable, to (a) promptly notify the Company of the existence, terms and circumstances surrounding such External Demand or Permitted Disclosure and (b) assist the Company, at the Company’s request and expense, in seeking a protective order or other appropriate remedy to the extent available under the circumstances. In the event that such protective order or other remedy is not obtained or that the Company waives compliance with the provisions hereof, (i) you or your Representatives, as the case may be, may disclose only that portion of the Evaluation Material or Transaction Information which you or your Representatives are advised by counsel is required to be disclosed and to only those persons to whom you or your Representatives are advised by counsel are required to receive such information, and you or your Representatives shall exercise reasonable efforts to obtain assurance that confidential treatment will be accorded such Evaluation Material or Transaction Information, and (ii) you or your Representatives shall not be liable for such disclosure.
5. Communications and Requests. You agree that unless otherwise agreed to by the Company in writing, (a) all communications regarding the Possible Transaction, (b) requests for additional information regarding the Possible Transaction, (c) requests for facility tours or management meetings in connection with the Possible Transaction, and (d) discussions or questions regarding procedures, timing and terms of the Possible Transaction, will be submitted or directed exclusively to Andrew Weisenfeld ([email protected], 212-887-2102) of MTS Health Partners, L.P., the financial advisor to the Company or such other persons designated by the Company for such purpose.
6. Non-Solicit. You agree that, for a period of one year from the date of this letter agreement, neither you nor any of your Affiliates who are provided with Evaluation Material or become aware of your discussions regarding the Possible Transaction will, directly or indirectly, solicit for employment or employ (a) any individual serving as an executive officer of the Company, or (b) any employee of the Company or any of its subsidiaries with whom you have had substantial contact, or who is specifically identified to you (other than through a general roster of employees, general employee equity and compensation data or other employee data provided in due diligence that is general in nature), during your investigation of the Company and its business in connection with the Possible Transaction, in each case without obtaining the prior written consent of the Company; provided that you may (i) make general solicitations for employment not specifically directed at the Company or any of its subsidiaries or their respective employees and employ any person who responds to such solicitations, (ii) solicit and/or hire any person who contacts such party or its Affiliates on his or her own initiative without any initial direct or indirect solicitation or encouragement by such party or its Affiliates (other than as permitted by the preceding clause (i) and (iii) solicit and/or hire any person whose employment with the other party and its subsidiaries previously has been terminated for at least 90 days.
7. Standstill. You hereby acknowledge that, except as otherwise invited in writing by the Company’s Board of Directors or a Representative thereof or otherwise agreed in writing by the Company, for a period of one year from the date of this letter agreement (the “Standstill Period”), neither you nor any of your Affiliates who are provided with Evaluation Material will: (a) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase a substantial portion of the Company’s assets or businesses, or similar transactions involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company; (b) (i) acquire beneficial ownership of any voting securities (including in derivative form) of the Company (collectively, a transaction specified in (a)(i), (a)(ii) and (b)(i) involving a majority of the Company’s outstanding capital stock or consolidated assets, is referred to as a “Business Combination”), (ii) propose or seek, whether alone or in concert with others, any “solicitation” of “proxies” (as such terms are used in the rules of the Securities and Exchange Commission) or consents to vote any voting securities (including in derivative form) of the Company, (iii) nominate any person as a director of the Company, or (iv) propose any matter to be voted upon by the stockholders of the Company; (c) form, join or in any way participate in a third party “group” (as such term is used in the rules of the Securities and Exchange Commission) with respect to any voting securities (including in derivative form) of the Company or a Business Combination involving the Company; (d) request the Company (or any of its officers, directors or Representatives), directly or indirectly, to amend or waive any provision of this paragraph (including this sentence); or (e) take any action that would reasonably be expected to require the Company to make a public announcement regarding a potential Business Combination; provided, however, that nothing in this paragraph shall prohibit you from making a confidential proposal to the Company or the Company’s Board of Directors for a transaction involving a Business Combination (including a Possible Transaction) in a manner that would not reasonably be expected to require either party to make public disclosure with respect thereto.
Notwithstanding anything to the contrary in this letter agreement, the Standstill Period shall automatically terminate and cease to be of any further force and effect upon the earliest to occur of any of the following: (a) the Company publicly announcing its or its Board of Directors’ approval or recommendation of (A) any person or “group” (as such term is used in the rules of the Securities and Exchange Commission) commencing or publicly announcing an intention to commence a tender or exchange offer that, if consummated, would make such person or “group” (as such term is used in the rules of the Securities and Exchange Commission) (or any of their respective Affiliates) the beneficial owner (within the meaning of Section 13(d)(1) of the Exchange Act) of 50% or more of the Company’s equity securities, (B) an offer or proposal by any person or “group” (as such term is used in the rules of the Securities and Exchange Commission) which if effected would result in the acquisition (whether by merger, consolidation, recapitalization, liquidation or otherwise) by such person or “group” (as such term is used in the rules of the Securities and Exchange Commission) of 50% or more of such other party’s equity securities or a majority of the consolidated assets of the Company and its Affiliates (any such transaction, an “Acquisition Transaction”), or (C) any Acquisition Transaction, or (b) the Company entering into or publicly announcing its intention to enter into a definitive agreement with a third party to effectuate an Acquisition Transaction. Notwithstanding anything to the contrary in this letter agreement, you may own or acquire, or propose to acquire, any assets or securities of the Company in connection with a transaction subject to approval pursuant to proceedings under the United States Bankruptcy Code.
8. No Representation of Accuracy. Although the Company has endeavored to include in the Evaluation Material information which it believes to be relevant for the purpose of your investigation, you understand that none of the Company or its Representatives have made or make in this letter agreement any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material. You agree that none of the Company or its Representatives shall have any liability to you or any of your Representatives pursuant to this letter agreement resulting from the selection, use or content of the Evaluation Material by you or your Affiliates or Representatives. You further agree that you and your Representatives will be entitled to rely solely on such representations and warranties as may be included in a definitive agreement relating to a Possible Transaction, subject to such limitations and restrictions as may be contained therein.
9. Destruction or Return of Evaluation Material. You may determine not to pursue a Possible Transaction at any time and for any, or no, reason, and will promptly inform the Company at any time such a decision is made. Upon the Company’s demand, you shall, at your sole option, either promptly (a) destroy the Evaluation Material and any copies thereof, or (b) return to the Company all Evaluation Material and any copies thereof, and, in either case, confirm in writing to the Company that all such material has been destroyed or returned, as applicable, in compliance with this letter agreement. It is understood that information in an intangible or electronic format containing Evaluation Material cannot be removed, erased or otherwise deleted from archival systems (also known as “computer or system back-ups”) but that such information will continue to be protected under the confidentiality requirements and non-use limitations contained in this letter agreement, and you and your Representatives shall continue to be bound by the obligations of confidentiality and non-use hereunder. Notwithstanding the foregoing, you and your Representatives may retain one copy of any work product prepared by you or them that contains Evaluation Material to the extent necessary or advisable pursuant to applicable legal or regulatory requirements, professional standards or reasonable business practice; provided that you and such Representatives shall continue to be bound by the obligations of confidentiality and non-use hereunder with respect to such work product.
10. Injunctive Relief. You acknowledge and agree that money damages may not be a sufficient remedy for any breach of this letter agreement by you or your Representatives and that the Company shall be entitled to seek equitable relief, including injunction and specific performance, as a remedy for any such breach, without proof of damages, and each party further agrees to waive, and shall cause its Representatives to waive, any requirement for the securing or posting of any bond in connection with any such remedy. Such remedies shall not be the exclusive remedies for a breach of this letter agreement, but will be in addition to all other remedies available at law or in equity.
11. Definitive Agreement. You agree that unless and until a definitive agreement between the Company and you with respect to the Possible Transaction (a “Definitive Agreement”) has been executed and delivered, neither the Company nor you will be under any legal obligation of any kind whatsoever with respect to a Possible Transaction by virtue of this letter agreement or any other written or oral expression except, in the case of this letter agreement, for the matters specifically agreed to herein. In addition, you hereby waive, in advance, any claims (including, without limitation, breach of contract) in connection with any Possible Transaction other than claims under any Definitive Agreement relating to a Possible Transaction or under this letter agreement. For purposes of this letter agreement, the term “Definitive Agreement” does not include an executed letter of intent or any other preliminary written agreement, nor does it include any oral acceptance of an offer or bid by you. The agreement set forth in this paragraph may be modified or waived only by a separate writing by the Company and you expressly so modifying or waiving such agreement.
12. Process Agreements. You acknowledge that (a) the Company shall be free to conduct a process for a Possible Transaction as it in its sole discretion shall determine (including, without limitation, negotiating with any other prospective buyers and entering into a definitive agreement without prior notice to you or to any other person), and (b) any procedures relating to such Possible Transaction may be implemented or changed at any time prior to entry into a definitive agreement relating to such Possible Transaction without notice to you or any other person. The Company reserves the right at any time, in its sole discretion, for any reason or no reason, to reject any and all proposals made by you or any of your Representatives with regard to the Possible Transaction, to terminate discussions and negotiations with you, and to refuse to provide any further access to Evaluation Material. You further acknowledge that the Company has entered into an Agreement and Plan of Merger with REGENXBIO, Inc. and Muddy Charles Acquisition Corporation, dated August 24, 2017 (the “Merger Agreement”), and that you have read the Merger Agreement in its entirety, including Sections 5.3 and 5.4 therein. You agree that nothing in this letter agreement shall be deemed to restrict the Company’s ability to comply with the provisions of the Merger Agreement, including Sections 5.3 and 5.4 therein, and in the case of any inconsistency between this letter agreement and the Merger Agreement, the terms of the Merger Agreement shall control with respect to any action by the Company.
13. No Waiver. No failure or delay by the Company or any of its Representatives in exercising any right, power or privilege under this letter agreement shall operate as a waiver thereof, and no amendment, modification or waiver hereof shall be effective, unless in writing and signed by an officer or other authorized person of the Company hereto.
14. Severability. The illegality, invalidity or unenforceability of any provision hereof under the laws of any jurisdiction shall not affect its legality, validity or enforceability under the laws of any other jurisdiction, nor the legality, validity or enforceability of any other provision.
15. Governing Law and Forum. This letter agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware. The parties hereby irrevocably and unconditionally consent to the exclusive jurisdiction of the Chancery Courts in the State of Delaware and the United States District Court for the District of the State of Delaware for any action, suit or proceeding arising out of or relating to this letter agreement or the Possible Transaction, and agree not to commence any action, suit or proceeding related thereto except in such courts.
16. Counterparts. This letter agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute the same agreement. One or more counterparts of this letter agreement may be delivered by facsimile or pdf electronic transmission, with the intention that they shall have the same effect as an original counterpart hereof.
17. Term. This letter agreement shall terminate on the date that is two years following the date hereof.
Very truly yours,
Dimension Therapeutics, Inc.
By: /s/ Annalisa Jenkins, MBBS, FRCP
Name: Annalisa Jenkins, MBBS, FRCP
Title: President & Chief Executive Officer
Confirmed and Agreed to:
Ultragenyx Pharmaceutical Inc.
By: /s/ Shalini Sharp
Name: Shalini Sharp
Title: Chief Financial Officer
Date: September 19, 2017
| Entailment |
620_nda-7 | 620_nda-7_0 | Q: Receiving Party may share some Confidential Information with some third-parties (including consultants, agents and professional advisors).
Text: Exhibit (e)(2)
September 19, 2017
Ultragenyx Pharmaceutical Inc.
60 Leveroni Court
Novato, California 94949
Attention: Karah Parschauer, General Counsel
Ladies and Gentlemen:
In connection with your consideration of a possible negotiated business transaction involving Dimension Therapeutics, Inc. (the “Company”) and you (the “Possible Transaction”), and in order to evaluate, consider, negotiate and/or implement the Possible Transaction, you have requested information concerning the Company that is confidential and proprietary. As a condition to being furnished such confidential and proprietary information, you agree to treat any such information, whether written or oral, concerning the Company or any of its subsidiaries, Affiliates (as such term is defined in Rule 12b-2 of the Securities Exchange Act of 1934, as amended) or divisions (whether prepared by the Company, its advisors or otherwise) that is furnished on or after the date hereof to you by or on behalf of the Company (herein collectively referred to as the “Evaluation Material”) in accordance with the provisions of this letter agreement and to take or abstain from taking certain other actions herein set forth. The term “Evaluation Material” includes, without limitation, all notes, analyses, compilations, spreadsheets, data, reports, studies, interpretations or other documents furnished by or on behalf of the Company to you or your Representatives (as defined below) or prepared by you or your Representatives, to the extent such materials reflect or are based upon the Evaluation Material. The term “Evaluation Material” does not include information that (a) is or becomes available to you on a nonconfidential basis from a source other than the Company or its Representatives; provided that such source is not known by you to be bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation to, the Company that prohibits such disclosure, (b) is or becomes available to the public other than as a result of a disclosure by you or your Representatives in violation of this letter agreement, (c) you can demonstrate is in your possession or the possession of your Representatives prior to receipt from the Company or its Representatives pursuant to this letter agreement, or (d) has been or is independently developed by you or your Representatives without the use of the Evaluation Material or in violation of the terms of this letter agreement. For purposes of this letter agreement the term “Representatives” shall include any person, its Affiliates and such person’s and its Affiliates’ respective directors, officers, employees, agents, attorneys, accountants, financial advisors and other professional representatives or advisors.
1. Non-Disclosure and Use of Evaluation Material. You hereby agree that the Evaluation Material will be kept confidential and used solely for the purpose of evaluating, considering,negotiating and/or implementing the Possible Transaction; provided, however, that the Evaluation Material may be disclosed (i) to any of your Representatives who need to know such information solely for the purpose of evaluating, considering,
negotiating and/or implementing a Possible Transaction, (ii) pursuant to an External Demand in accordance with paragraph 4 of this letter agreement and (iii) as the Company may otherwise consent in writing. All such Representatives shall (A) be informed by you of the confidential nature of the Evaluation Material, (B) agree to treat the Evaluation Material in accordance with this letter agreement, and (C) be advised of the terms of this letter agreement and directed to comply with the terms hereof to the same extent as if they were parties to this letter agreement. You agree to be responsible for any breaches of any of the provisions of this letter agreement by any of your Representatives (it being understood that such responsibility shall be in addition to and not by way of limitation of any right or remedy the Company may have against your Representatives with respect to such breach).
2. Securities Laws. You hereby acknowledge that you and your Representatives are aware, and will advise your Representatives, that the Evaluation Material may contain material, non-public information about the Company and that United States securities laws prohibit any person who has material, non-public information about a company from purchasing or selling any securities of the Company while in possession of such information.
3. Transaction Information. You will not, and will direct your Representatives not to, disclose to any person (except (i) to your Representatives who need to know such information for the purpose of evaluating, considering, negotiating and/or implementing a Possible Transaction and (ii) as the Company may otherwise consent in writing) either the fact that discussions or negotiations are taking place concerning the Possible Transaction or any of the terms, conditions or other facts with respect to the Possible Transaction, including the status thereof or that Evaluation Material has been made available to you (such information, “Transaction Information”); provided, however, that disclosure of Transaction Information pursuant to an External Demand shall be governed by paragraph 4 of this letter agreement; Without limiting the generality of the foregoing, you further agree that you will not share the Evaluation Material with or enter into any agreement, arrangement or understanding, or any discussions which would reasonably be expected to lead to an agreement, arrangement or understanding, with any other person, including other potential bidders and equity or debt financing sources (other than your Representatives as permitted above) regarding a Possible Transaction involving the Company without the prior written consent of the Company and only upon such person executing a confidentiality agreement in favor of the Company with terms and conditions substantially consistent with this letter agreement.
4. Required Disclosure. Notwithstanding anything to the contrary provided in this letter agreement, in the event you or any of your Representatives receive a request or are required by any law, rule, order, decree or regulation (including, without limitation, applicable securities or antitrust laws and applicable stock exchange rules) or any regulatory authority or legal, administrative or judicial process (including, without limitation, or by deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process or pursuant to a formal request from a regulatory examiner) (any such requested or required disclosure, an “External Demand”) to disclose all or any part of the Evaluation Material or the Transaction Information, you or your Representatives, as the case may be, agree, to the extent permissible and reasonably practicable, to (a) promptly notify the Company of the existence, terms and circumstances surrounding such External Demand or Permitted Disclosure and (b) assist the Company, at the Company’s request and expense, in seeking a protective order or other appropriate remedy to the extent available under the circumstances. In the event that such protective order or other remedy is not obtained or that the Company waives compliance with the provisions hereof, (i) you or your Representatives, as the case may be, may disclose only that portion of the Evaluation Material or Transaction Information which you or your Representatives are advised by counsel is required to be disclosed and to only those persons to whom you or your Representatives are advised by counsel are required to receive such information, and you or your Representatives shall exercise reasonable efforts to obtain assurance that confidential treatment will be accorded such Evaluation Material or Transaction Information, and (ii) you or your Representatives shall not be liable for such disclosure.
5. Communications and Requests. You agree that unless otherwise agreed to by the Company in writing, (a) all communications regarding the Possible Transaction, (b) requests for additional information regarding the Possible Transaction, (c) requests for facility tours or management meetings in connection with the Possible Transaction, and (d) discussions or questions regarding procedures, timing and terms of the Possible Transaction, will be submitted or directed exclusively to Andrew Weisenfeld ([email protected], 212-887-2102) of MTS Health Partners, L.P., the financial advisor to the Company or such other persons designated by the Company for such purpose.
6. Non-Solicit. You agree that, for a period of one year from the date of this letter agreement, neither you nor any of your Affiliates who are provided with Evaluation Material or become aware of your discussions regarding the Possible Transaction will, directly or indirectly, solicit for employment or employ (a) any individual serving as an executive officer of the Company, or (b) any employee of the Company or any of its subsidiaries with whom you have had substantial contact, or who is specifically identified to you (other than through a general roster of employees, general employee equity and compensation data or other employee data provided in due diligence that is general in nature), during your investigation of the Company and its business in connection with the Possible Transaction, in each case without obtaining the prior written consent of the Company; provided that you may (i) make general solicitations for employment not specifically directed at the Company or any of its subsidiaries or their respective employees and employ any person who responds to such solicitations, (ii) solicit and/or hire any person who contacts such party or its Affiliates on his or her own initiative without any initial direct or indirect solicitation or encouragement by such party or its Affiliates (other than as permitted by the preceding clause (i) and (iii) solicit and/or hire any person whose employment with the other party and its subsidiaries previously has been terminated for at least 90 days.
7. Standstill. You hereby acknowledge that, except as otherwise invited in writing by the Company’s Board of Directors or a Representative thereof or otherwise agreed in writing by the Company, for a period of one year from the date of this letter agreement (the “Standstill Period”), neither you nor any of your Affiliates who are provided with Evaluation Material will: (a) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase a substantial portion of the Company’s assets or businesses, or similar transactions involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company; (b) (i) acquire beneficial ownership of any voting securities (including in derivative form) of the Company (collectively, a transaction specified in (a)(i), (a)(ii) and (b)(i) involving a majority of the Company’s outstanding capital stock or consolidated assets, is referred to as a “Business Combination”), (ii) propose or seek, whether alone or in concert with others, any “solicitation” of “proxies” (as such terms are used in the rules of the Securities and Exchange Commission) or consents to vote any voting securities (including in derivative form) of the Company, (iii) nominate any person as a director of the Company, or (iv) propose any matter to be voted upon by the stockholders of the Company; (c) form, join or in any way participate in a third party “group” (as such term is used in the rules of the Securities and Exchange Commission) with respect to any voting securities (including in derivative form) of the Company or a Business Combination involving the Company; (d) request the Company (or any of its officers, directors or Representatives), directly or indirectly, to amend or waive any provision of this paragraph (including this sentence); or (e) take any action that would reasonably be expected to require the Company to make a public announcement regarding a potential Business Combination; provided, however, that nothing in this paragraph shall prohibit you from making a confidential proposal to the Company or the Company’s Board of Directors for a transaction involving a Business Combination (including a Possible Transaction) in a manner that would not reasonably be expected to require either party to make public disclosure with respect thereto.
Notwithstanding anything to the contrary in this letter agreement, the Standstill Period shall automatically terminate and cease to be of any further force and effect upon the earliest to occur of any of the following: (a) the Company publicly announcing its or its Board of Directors’ approval or recommendation of (A) any person or “group” (as such term is used in the rules of the Securities and Exchange Commission) commencing or publicly announcing an intention to commence a tender or exchange offer that, if consummated, would make such person or “group” (as such term is used in the rules of the Securities and Exchange Commission) (or any of their respective Affiliates) the beneficial owner (within the meaning of Section 13(d)(1) of the Exchange Act) of 50% or more of the Company’s equity securities, (B) an offer or proposal by any person or “group” (as such term is used in the rules of the Securities and Exchange Commission) which if effected would result in the acquisition (whether by merger, consolidation, recapitalization, liquidation or otherwise) by such person or “group” (as such term is used in the rules of the Securities and Exchange Commission) of 50% or more of such other party’s equity securities or a majority of the consolidated assets of the Company and its Affiliates (any such transaction, an “Acquisition Transaction”), or (C) any Acquisition Transaction, or (b) the Company entering into or publicly announcing its intention to enter into a definitive agreement with a third party to effectuate an Acquisition Transaction. Notwithstanding anything to the contrary in this letter agreement, you may own or acquire, or propose to acquire, any assets or securities of the Company in connection with a transaction subject to approval pursuant to proceedings under the United States Bankruptcy Code.
8. No Representation of Accuracy. Although the Company has endeavored to include in the Evaluation Material information which it believes to be relevant for the purpose of your investigation, you understand that none of the Company or its Representatives have made or make in this letter agreement any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material. You agree that none of the Company or its Representatives shall have any liability to you or any of your Representatives pursuant to this letter agreement resulting from the selection, use or content of the Evaluation Material by you or your Affiliates or Representatives. You further agree that you and your Representatives will be entitled to rely solely on such representations and warranties as may be included in a definitive agreement relating to a Possible Transaction, subject to such limitations and restrictions as may be contained therein.
9. Destruction or Return of Evaluation Material. You may determine not to pursue a Possible Transaction at any time and for any, or no, reason, and will promptly inform the Company at any time such a decision is made. Upon the Company’s demand, you shall, at your sole option, either promptly (a) destroy the Evaluation Material and any copies thereof, or (b) return to the Company all Evaluation Material and any copies thereof, and, in either case, confirm in writing to the Company that all such material has been destroyed or returned, as applicable, in compliance with this letter agreement. It is understood that information in an intangible or electronic format containing Evaluation Material cannot be removed, erased or otherwise deleted from archival systems (also known as “computer or system back-ups”) but that such information will continue to be protected under the confidentiality requirements and non-use limitations contained in this letter agreement, and you and your Representatives shall continue to be bound by the obligations of confidentiality and non-use hereunder. Notwithstanding the foregoing, you and your Representatives may retain one copy of any work product prepared by you or them that contains Evaluation Material to the extent necessary or advisable pursuant to applicable legal or regulatory requirements, professional standards or reasonable business practice; provided that you and such Representatives shall continue to be bound by the obligations of confidentiality and non-use hereunder with respect to such work product.
10. Injunctive Relief. You acknowledge and agree that money damages may not be a sufficient remedy for any breach of this letter agreement by you or your Representatives and that the Company shall be entitled to seek equitable relief, including injunction and specific performance, as a remedy for any such breach, without proof of damages, and each party further agrees to waive, and shall cause its Representatives to waive, any requirement for the securing or posting of any bond in connection with any such remedy. Such remedies shall not be the exclusive remedies for a breach of this letter agreement, but will be in addition to all other remedies available at law or in equity.
11. Definitive Agreement. You agree that unless and until a definitive agreement between the Company and you with respect to the Possible Transaction (a “Definitive Agreement”) has been executed and delivered, neither the Company nor you will be under any legal obligation of any kind whatsoever with respect to a Possible Transaction by virtue of this letter agreement or any other written or oral expression except, in the case of this letter agreement, for the matters specifically agreed to herein. In addition, you hereby waive, in advance, any claims (including, without limitation, breach of contract) in connection with any Possible Transaction other than claims under any Definitive Agreement relating to a Possible Transaction or under this letter agreement. For purposes of this letter agreement, the term “Definitive Agreement” does not include an executed letter of intent or any other preliminary written agreement, nor does it include any oral acceptance of an offer or bid by you. The agreement set forth in this paragraph may be modified or waived only by a separate writing by the Company and you expressly so modifying or waiving such agreement.
12. Process Agreements. You acknowledge that (a) the Company shall be free to conduct a process for a Possible Transaction as it in its sole discretion shall determine (including, without limitation, negotiating with any other prospective buyers and entering into a definitive agreement without prior notice to you or to any other person), and (b) any procedures relating to such Possible Transaction may be implemented or changed at any time prior to entry into a definitive agreement relating to such Possible Transaction without notice to you or any other person. The Company reserves the right at any time, in its sole discretion, for any reason or no reason, to reject any and all proposals made by you or any of your Representatives with regard to the Possible Transaction, to terminate discussions and negotiations with you, and to refuse to provide any further access to Evaluation Material. You further acknowledge that the Company has entered into an Agreement and Plan of Merger with REGENXBIO, Inc. and Muddy Charles Acquisition Corporation, dated August 24, 2017 (the “Merger Agreement”), and that you have read the Merger Agreement in its entirety, including Sections 5.3 and 5.4 therein. You agree that nothing in this letter agreement shall be deemed to restrict the Company’s ability to comply with the provisions of the Merger Agreement, including Sections 5.3 and 5.4 therein, and in the case of any inconsistency between this letter agreement and the Merger Agreement, the terms of the Merger Agreement shall control with respect to any action by the Company.
13. No Waiver. No failure or delay by the Company or any of its Representatives in exercising any right, power or privilege under this letter agreement shall operate as a waiver thereof, and no amendment, modification or waiver hereof shall be effective, unless in writing and signed by an officer or other authorized person of the Company hereto.
14. Severability. The illegality, invalidity or unenforceability of any provision hereof under the laws of any jurisdiction shall not affect its legality, validity or enforceability under the laws of any other jurisdiction, nor the legality, validity or enforceability of any other provision.
15. Governing Law and Forum. This letter agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware. The parties hereby irrevocably and unconditionally consent to the exclusive jurisdiction of the Chancery Courts in the State of Delaware and the United States District Court for the District of the State of Delaware for any action, suit or proceeding arising out of or relating to this letter agreement or the Possible Transaction, and agree not to commence any action, suit or proceeding related thereto except in such courts.
16. Counterparts. This letter agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute the same agreement. One or more counterparts of this letter agreement may be delivered by facsimile or pdf electronic transmission, with the intention that they shall have the same effect as an original counterpart hereof.
17. Term. This letter agreement shall terminate on the date that is two years following the date hereof.
Very truly yours,
Dimension Therapeutics, Inc.
By: /s/ Annalisa Jenkins, MBBS, FRCP
Name: Annalisa Jenkins, MBBS, FRCP
Title: President & Chief Executive Officer
Confirmed and Agreed to:
Ultragenyx Pharmaceutical Inc.
By: /s/ Shalini Sharp
Name: Shalini Sharp
Title: Chief Financial Officer
Date: September 19, 2017
| Entailment |
620_nda-17 | 620_nda-17_0 | Q: Receiving Party may create a copy of some Confidential Information in some circumstances.
Text: Exhibit (e)(2)
September 19, 2017
Ultragenyx Pharmaceutical Inc.
60 Leveroni Court
Novato, California 94949
Attention: Karah Parschauer, General Counsel
Ladies and Gentlemen:
In connection with your consideration of a possible negotiated business transaction involving Dimension Therapeutics, Inc. (the “Company”) and you (the “Possible Transaction”), and in order to evaluate, consider, negotiate and/or implement the Possible Transaction, you have requested information concerning the Company that is confidential and proprietary. As a condition to being furnished such confidential and proprietary information, you agree to treat any such information, whether written or oral, concerning the Company or any of its subsidiaries, Affiliates (as such term is defined in Rule 12b-2 of the Securities Exchange Act of 1934, as amended) or divisions (whether prepared by the Company, its advisors or otherwise) that is furnished on or after the date hereof to you by or on behalf of the Company (herein collectively referred to as the “Evaluation Material”) in accordance with the provisions of this letter agreement and to take or abstain from taking certain other actions herein set forth. The term “Evaluation Material” includes, without limitation, all notes, analyses, compilations, spreadsheets, data, reports, studies, interpretations or other documents furnished by or on behalf of the Company to you or your Representatives (as defined below) or prepared by you or your Representatives, to the extent such materials reflect or are based upon the Evaluation Material. The term “Evaluation Material” does not include information that (a) is or becomes available to you on a nonconfidential basis from a source other than the Company or its Representatives; provided that such source is not known by you to be bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation to, the Company that prohibits such disclosure, (b) is or becomes available to the public other than as a result of a disclosure by you or your Representatives in violation of this letter agreement, (c) you can demonstrate is in your possession or the possession of your Representatives prior to receipt from the Company or its Representatives pursuant to this letter agreement, or (d) has been or is independently developed by you or your Representatives without the use of the Evaluation Material or in violation of the terms of this letter agreement. For purposes of this letter agreement the term “Representatives” shall include any person, its Affiliates and such person’s and its Affiliates’ respective directors, officers, employees, agents, attorneys, accountants, financial advisors and other professional representatives or advisors.
1. Non-Disclosure and Use of Evaluation Material. You hereby agree that the Evaluation Material will be kept confidential and used solely for the purpose of evaluating, considering,negotiating and/or implementing the Possible Transaction; provided, however, that the Evaluation Material may be disclosed (i) to any of your Representatives who need to know such information solely for the purpose of evaluating, considering,
negotiating and/or implementing a Possible Transaction, (ii) pursuant to an External Demand in accordance with paragraph 4 of this letter agreement and (iii) as the Company may otherwise consent in writing. All such Representatives shall (A) be informed by you of the confidential nature of the Evaluation Material, (B) agree to treat the Evaluation Material in accordance with this letter agreement, and (C) be advised of the terms of this letter agreement and directed to comply with the terms hereof to the same extent as if they were parties to this letter agreement. You agree to be responsible for any breaches of any of the provisions of this letter agreement by any of your Representatives (it being understood that such responsibility shall be in addition to and not by way of limitation of any right or remedy the Company may have against your Representatives with respect to such breach).
2. Securities Laws. You hereby acknowledge that you and your Representatives are aware, and will advise your Representatives, that the Evaluation Material may contain material, non-public information about the Company and that United States securities laws prohibit any person who has material, non-public information about a company from purchasing or selling any securities of the Company while in possession of such information.
3. Transaction Information. You will not, and will direct your Representatives not to, disclose to any person (except (i) to your Representatives who need to know such information for the purpose of evaluating, considering, negotiating and/or implementing a Possible Transaction and (ii) as the Company may otherwise consent in writing) either the fact that discussions or negotiations are taking place concerning the Possible Transaction or any of the terms, conditions or other facts with respect to the Possible Transaction, including the status thereof or that Evaluation Material has been made available to you (such information, “Transaction Information”); provided, however, that disclosure of Transaction Information pursuant to an External Demand shall be governed by paragraph 4 of this letter agreement; Without limiting the generality of the foregoing, you further agree that you will not share the Evaluation Material with or enter into any agreement, arrangement or understanding, or any discussions which would reasonably be expected to lead to an agreement, arrangement or understanding, with any other person, including other potential bidders and equity or debt financing sources (other than your Representatives as permitted above) regarding a Possible Transaction involving the Company without the prior written consent of the Company and only upon such person executing a confidentiality agreement in favor of the Company with terms and conditions substantially consistent with this letter agreement.
4. Required Disclosure. Notwithstanding anything to the contrary provided in this letter agreement, in the event you or any of your Representatives receive a request or are required by any law, rule, order, decree or regulation (including, without limitation, applicable securities or antitrust laws and applicable stock exchange rules) or any regulatory authority or legal, administrative or judicial process (including, without limitation, or by deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process or pursuant to a formal request from a regulatory examiner) (any such requested or required disclosure, an “External Demand”) to disclose all or any part of the Evaluation Material or the Transaction Information, you or your Representatives, as the case may be, agree, to the extent permissible and reasonably practicable, to (a) promptly notify the Company of the existence, terms and circumstances surrounding such External Demand or Permitted Disclosure and (b) assist the Company, at the Company’s request and expense, in seeking a protective order or other appropriate remedy to the extent available under the circumstances. In the event that such protective order or other remedy is not obtained or that the Company waives compliance with the provisions hereof, (i) you or your Representatives, as the case may be, may disclose only that portion of the Evaluation Material or Transaction Information which you or your Representatives are advised by counsel is required to be disclosed and to only those persons to whom you or your Representatives are advised by counsel are required to receive such information, and you or your Representatives shall exercise reasonable efforts to obtain assurance that confidential treatment will be accorded such Evaluation Material or Transaction Information, and (ii) you or your Representatives shall not be liable for such disclosure.
5. Communications and Requests. You agree that unless otherwise agreed to by the Company in writing, (a) all communications regarding the Possible Transaction, (b) requests for additional information regarding the Possible Transaction, (c) requests for facility tours or management meetings in connection with the Possible Transaction, and (d) discussions or questions regarding procedures, timing and terms of the Possible Transaction, will be submitted or directed exclusively to Andrew Weisenfeld ([email protected], 212-887-2102) of MTS Health Partners, L.P., the financial advisor to the Company or such other persons designated by the Company for such purpose.
6. Non-Solicit. You agree that, for a period of one year from the date of this letter agreement, neither you nor any of your Affiliates who are provided with Evaluation Material or become aware of your discussions regarding the Possible Transaction will, directly or indirectly, solicit for employment or employ (a) any individual serving as an executive officer of the Company, or (b) any employee of the Company or any of its subsidiaries with whom you have had substantial contact, or who is specifically identified to you (other than through a general roster of employees, general employee equity and compensation data or other employee data provided in due diligence that is general in nature), during your investigation of the Company and its business in connection with the Possible Transaction, in each case without obtaining the prior written consent of the Company; provided that you may (i) make general solicitations for employment not specifically directed at the Company or any of its subsidiaries or their respective employees and employ any person who responds to such solicitations, (ii) solicit and/or hire any person who contacts such party or its Affiliates on his or her own initiative without any initial direct or indirect solicitation or encouragement by such party or its Affiliates (other than as permitted by the preceding clause (i) and (iii) solicit and/or hire any person whose employment with the other party and its subsidiaries previously has been terminated for at least 90 days.
7. Standstill. You hereby acknowledge that, except as otherwise invited in writing by the Company’s Board of Directors or a Representative thereof or otherwise agreed in writing by the Company, for a period of one year from the date of this letter agreement (the “Standstill Period”), neither you nor any of your Affiliates who are provided with Evaluation Material will: (a) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase a substantial portion of the Company’s assets or businesses, or similar transactions involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company; (b) (i) acquire beneficial ownership of any voting securities (including in derivative form) of the Company (collectively, a transaction specified in (a)(i), (a)(ii) and (b)(i) involving a majority of the Company’s outstanding capital stock or consolidated assets, is referred to as a “Business Combination”), (ii) propose or seek, whether alone or in concert with others, any “solicitation” of “proxies” (as such terms are used in the rules of the Securities and Exchange Commission) or consents to vote any voting securities (including in derivative form) of the Company, (iii) nominate any person as a director of the Company, or (iv) propose any matter to be voted upon by the stockholders of the Company; (c) form, join or in any way participate in a third party “group” (as such term is used in the rules of the Securities and Exchange Commission) with respect to any voting securities (including in derivative form) of the Company or a Business Combination involving the Company; (d) request the Company (or any of its officers, directors or Representatives), directly or indirectly, to amend or waive any provision of this paragraph (including this sentence); or (e) take any action that would reasonably be expected to require the Company to make a public announcement regarding a potential Business Combination; provided, however, that nothing in this paragraph shall prohibit you from making a confidential proposal to the Company or the Company’s Board of Directors for a transaction involving a Business Combination (including a Possible Transaction) in a manner that would not reasonably be expected to require either party to make public disclosure with respect thereto.
Notwithstanding anything to the contrary in this letter agreement, the Standstill Period shall automatically terminate and cease to be of any further force and effect upon the earliest to occur of any of the following: (a) the Company publicly announcing its or its Board of Directors’ approval or recommendation of (A) any person or “group” (as such term is used in the rules of the Securities and Exchange Commission) commencing or publicly announcing an intention to commence a tender or exchange offer that, if consummated, would make such person or “group” (as such term is used in the rules of the Securities and Exchange Commission) (or any of their respective Affiliates) the beneficial owner (within the meaning of Section 13(d)(1) of the Exchange Act) of 50% or more of the Company’s equity securities, (B) an offer or proposal by any person or “group” (as such term is used in the rules of the Securities and Exchange Commission) which if effected would result in the acquisition (whether by merger, consolidation, recapitalization, liquidation or otherwise) by such person or “group” (as such term is used in the rules of the Securities and Exchange Commission) of 50% or more of such other party’s equity securities or a majority of the consolidated assets of the Company and its Affiliates (any such transaction, an “Acquisition Transaction”), or (C) any Acquisition Transaction, or (b) the Company entering into or publicly announcing its intention to enter into a definitive agreement with a third party to effectuate an Acquisition Transaction. Notwithstanding anything to the contrary in this letter agreement, you may own or acquire, or propose to acquire, any assets or securities of the Company in connection with a transaction subject to approval pursuant to proceedings under the United States Bankruptcy Code.
8. No Representation of Accuracy. Although the Company has endeavored to include in the Evaluation Material information which it believes to be relevant for the purpose of your investigation, you understand that none of the Company or its Representatives have made or make in this letter agreement any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material. You agree that none of the Company or its Representatives shall have any liability to you or any of your Representatives pursuant to this letter agreement resulting from the selection, use or content of the Evaluation Material by you or your Affiliates or Representatives. You further agree that you and your Representatives will be entitled to rely solely on such representations and warranties as may be included in a definitive agreement relating to a Possible Transaction, subject to such limitations and restrictions as may be contained therein.
9. Destruction or Return of Evaluation Material. You may determine not to pursue a Possible Transaction at any time and for any, or no, reason, and will promptly inform the Company at any time such a decision is made. Upon the Company’s demand, you shall, at your sole option, either promptly (a) destroy the Evaluation Material and any copies thereof, or (b) return to the Company all Evaluation Material and any copies thereof, and, in either case, confirm in writing to the Company that all such material has been destroyed or returned, as applicable, in compliance with this letter agreement. It is understood that information in an intangible or electronic format containing Evaluation Material cannot be removed, erased or otherwise deleted from archival systems (also known as “computer or system back-ups”) but that such information will continue to be protected under the confidentiality requirements and non-use limitations contained in this letter agreement, and you and your Representatives shall continue to be bound by the obligations of confidentiality and non-use hereunder. Notwithstanding the foregoing, you and your Representatives may retain one copy of any work product prepared by you or them that contains Evaluation Material to the extent necessary or advisable pursuant to applicable legal or regulatory requirements, professional standards or reasonable business practice; provided that you and such Representatives shall continue to be bound by the obligations of confidentiality and non-use hereunder with respect to such work product.
10. Injunctive Relief. You acknowledge and agree that money damages may not be a sufficient remedy for any breach of this letter agreement by you or your Representatives and that the Company shall be entitled to seek equitable relief, including injunction and specific performance, as a remedy for any such breach, without proof of damages, and each party further agrees to waive, and shall cause its Representatives to waive, any requirement for the securing or posting of any bond in connection with any such remedy. Such remedies shall not be the exclusive remedies for a breach of this letter agreement, but will be in addition to all other remedies available at law or in equity.
11. Definitive Agreement. You agree that unless and until a definitive agreement between the Company and you with respect to the Possible Transaction (a “Definitive Agreement”) has been executed and delivered, neither the Company nor you will be under any legal obligation of any kind whatsoever with respect to a Possible Transaction by virtue of this letter agreement or any other written or oral expression except, in the case of this letter agreement, for the matters specifically agreed to herein. In addition, you hereby waive, in advance, any claims (including, without limitation, breach of contract) in connection with any Possible Transaction other than claims under any Definitive Agreement relating to a Possible Transaction or under this letter agreement. For purposes of this letter agreement, the term “Definitive Agreement” does not include an executed letter of intent or any other preliminary written agreement, nor does it include any oral acceptance of an offer or bid by you. The agreement set forth in this paragraph may be modified or waived only by a separate writing by the Company and you expressly so modifying or waiving such agreement.
12. Process Agreements. You acknowledge that (a) the Company shall be free to conduct a process for a Possible Transaction as it in its sole discretion shall determine (including, without limitation, negotiating with any other prospective buyers and entering into a definitive agreement without prior notice to you or to any other person), and (b) any procedures relating to such Possible Transaction may be implemented or changed at any time prior to entry into a definitive agreement relating to such Possible Transaction without notice to you or any other person. The Company reserves the right at any time, in its sole discretion, for any reason or no reason, to reject any and all proposals made by you or any of your Representatives with regard to the Possible Transaction, to terminate discussions and negotiations with you, and to refuse to provide any further access to Evaluation Material. You further acknowledge that the Company has entered into an Agreement and Plan of Merger with REGENXBIO, Inc. and Muddy Charles Acquisition Corporation, dated August 24, 2017 (the “Merger Agreement”), and that you have read the Merger Agreement in its entirety, including Sections 5.3 and 5.4 therein. You agree that nothing in this letter agreement shall be deemed to restrict the Company’s ability to comply with the provisions of the Merger Agreement, including Sections 5.3 and 5.4 therein, and in the case of any inconsistency between this letter agreement and the Merger Agreement, the terms of the Merger Agreement shall control with respect to any action by the Company.
13. No Waiver. No failure or delay by the Company or any of its Representatives in exercising any right, power or privilege under this letter agreement shall operate as a waiver thereof, and no amendment, modification or waiver hereof shall be effective, unless in writing and signed by an officer or other authorized person of the Company hereto.
14. Severability. The illegality, invalidity or unenforceability of any provision hereof under the laws of any jurisdiction shall not affect its legality, validity or enforceability under the laws of any other jurisdiction, nor the legality, validity or enforceability of any other provision.
15. Governing Law and Forum. This letter agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware. The parties hereby irrevocably and unconditionally consent to the exclusive jurisdiction of the Chancery Courts in the State of Delaware and the United States District Court for the District of the State of Delaware for any action, suit or proceeding arising out of or relating to this letter agreement or the Possible Transaction, and agree not to commence any action, suit or proceeding related thereto except in such courts.
16. Counterparts. This letter agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute the same agreement. One or more counterparts of this letter agreement may be delivered by facsimile or pdf electronic transmission, with the intention that they shall have the same effect as an original counterpart hereof.
17. Term. This letter agreement shall terminate on the date that is two years following the date hereof.
Very truly yours,
Dimension Therapeutics, Inc.
By: /s/ Annalisa Jenkins, MBBS, FRCP
Name: Annalisa Jenkins, MBBS, FRCP
Title: President & Chief Executive Officer
Confirmed and Agreed to:
Ultragenyx Pharmaceutical Inc.
By: /s/ Shalini Sharp
Name: Shalini Sharp
Title: Chief Financial Officer
Date: September 19, 2017
| Not mentioned |
620_nda-8 | 620_nda-8_0 | Q: Receiving Party shall notify Disclosing Party in case Receiving Party is required by law, regulation or judicial process to disclose any Confidential Information.
Text: Exhibit (e)(2)
September 19, 2017
Ultragenyx Pharmaceutical Inc.
60 Leveroni Court
Novato, California 94949
Attention: Karah Parschauer, General Counsel
Ladies and Gentlemen:
In connection with your consideration of a possible negotiated business transaction involving Dimension Therapeutics, Inc. (the “Company”) and you (the “Possible Transaction”), and in order to evaluate, consider, negotiate and/or implement the Possible Transaction, you have requested information concerning the Company that is confidential and proprietary. As a condition to being furnished such confidential and proprietary information, you agree to treat any such information, whether written or oral, concerning the Company or any of its subsidiaries, Affiliates (as such term is defined in Rule 12b-2 of the Securities Exchange Act of 1934, as amended) or divisions (whether prepared by the Company, its advisors or otherwise) that is furnished on or after the date hereof to you by or on behalf of the Company (herein collectively referred to as the “Evaluation Material”) in accordance with the provisions of this letter agreement and to take or abstain from taking certain other actions herein set forth. The term “Evaluation Material” includes, without limitation, all notes, analyses, compilations, spreadsheets, data, reports, studies, interpretations or other documents furnished by or on behalf of the Company to you or your Representatives (as defined below) or prepared by you or your Representatives, to the extent such materials reflect or are based upon the Evaluation Material. The term “Evaluation Material” does not include information that (a) is or becomes available to you on a nonconfidential basis from a source other than the Company or its Representatives; provided that such source is not known by you to be bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation to, the Company that prohibits such disclosure, (b) is or becomes available to the public other than as a result of a disclosure by you or your Representatives in violation of this letter agreement, (c) you can demonstrate is in your possession or the possession of your Representatives prior to receipt from the Company or its Representatives pursuant to this letter agreement, or (d) has been or is independently developed by you or your Representatives without the use of the Evaluation Material or in violation of the terms of this letter agreement. For purposes of this letter agreement the term “Representatives” shall include any person, its Affiliates and such person’s and its Affiliates’ respective directors, officers, employees, agents, attorneys, accountants, financial advisors and other professional representatives or advisors.
1. Non-Disclosure and Use of Evaluation Material. You hereby agree that the Evaluation Material will be kept confidential and used solely for the purpose of evaluating, considering,negotiating and/or implementing the Possible Transaction; provided, however, that the Evaluation Material may be disclosed (i) to any of your Representatives who need to know such information solely for the purpose of evaluating, considering,
negotiating and/or implementing a Possible Transaction, (ii) pursuant to an External Demand in accordance with paragraph 4 of this letter agreement and (iii) as the Company may otherwise consent in writing. All such Representatives shall (A) be informed by you of the confidential nature of the Evaluation Material, (B) agree to treat the Evaluation Material in accordance with this letter agreement, and (C) be advised of the terms of this letter agreement and directed to comply with the terms hereof to the same extent as if they were parties to this letter agreement. You agree to be responsible for any breaches of any of the provisions of this letter agreement by any of your Representatives (it being understood that such responsibility shall be in addition to and not by way of limitation of any right or remedy the Company may have against your Representatives with respect to such breach).
2. Securities Laws. You hereby acknowledge that you and your Representatives are aware, and will advise your Representatives, that the Evaluation Material may contain material, non-public information about the Company and that United States securities laws prohibit any person who has material, non-public information about a company from purchasing or selling any securities of the Company while in possession of such information.
3. Transaction Information. You will not, and will direct your Representatives not to, disclose to any person (except (i) to your Representatives who need to know such information for the purpose of evaluating, considering, negotiating and/or implementing a Possible Transaction and (ii) as the Company may otherwise consent in writing) either the fact that discussions or negotiations are taking place concerning the Possible Transaction or any of the terms, conditions or other facts with respect to the Possible Transaction, including the status thereof or that Evaluation Material has been made available to you (such information, “Transaction Information”); provided, however, that disclosure of Transaction Information pursuant to an External Demand shall be governed by paragraph 4 of this letter agreement; Without limiting the generality of the foregoing, you further agree that you will not share the Evaluation Material with or enter into any agreement, arrangement or understanding, or any discussions which would reasonably be expected to lead to an agreement, arrangement or understanding, with any other person, including other potential bidders and equity or debt financing sources (other than your Representatives as permitted above) regarding a Possible Transaction involving the Company without the prior written consent of the Company and only upon such person executing a confidentiality agreement in favor of the Company with terms and conditions substantially consistent with this letter agreement.
4. Required Disclosure. Notwithstanding anything to the contrary provided in this letter agreement, in the event you or any of your Representatives receive a request or are required by any law, rule, order, decree or regulation (including, without limitation, applicable securities or antitrust laws and applicable stock exchange rules) or any regulatory authority or legal, administrative or judicial process (including, without limitation, or by deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process or pursuant to a formal request from a regulatory examiner) (any such requested or required disclosure, an “External Demand”) to disclose all or any part of the Evaluation Material or the Transaction Information, you or your Representatives, as the case may be, agree, to the extent permissible and reasonably practicable, to (a) promptly notify the Company of the existence, terms and circumstances surrounding such External Demand or Permitted Disclosure and (b) assist the Company, at the Company’s request and expense, in seeking a protective order or other appropriate remedy to the extent available under the circumstances. In the event that such protective order or other remedy is not obtained or that the Company waives compliance with the provisions hereof, (i) you or your Representatives, as the case may be, may disclose only that portion of the Evaluation Material or Transaction Information which you or your Representatives are advised by counsel is required to be disclosed and to only those persons to whom you or your Representatives are advised by counsel are required to receive such information, and you or your Representatives shall exercise reasonable efforts to obtain assurance that confidential treatment will be accorded such Evaluation Material or Transaction Information, and (ii) you or your Representatives shall not be liable for such disclosure.
5. Communications and Requests. You agree that unless otherwise agreed to by the Company in writing, (a) all communications regarding the Possible Transaction, (b) requests for additional information regarding the Possible Transaction, (c) requests for facility tours or management meetings in connection with the Possible Transaction, and (d) discussions or questions regarding procedures, timing and terms of the Possible Transaction, will be submitted or directed exclusively to Andrew Weisenfeld ([email protected], 212-887-2102) of MTS Health Partners, L.P., the financial advisor to the Company or such other persons designated by the Company for such purpose.
6. Non-Solicit. You agree that, for a period of one year from the date of this letter agreement, neither you nor any of your Affiliates who are provided with Evaluation Material or become aware of your discussions regarding the Possible Transaction will, directly or indirectly, solicit for employment or employ (a) any individual serving as an executive officer of the Company, or (b) any employee of the Company or any of its subsidiaries with whom you have had substantial contact, or who is specifically identified to you (other than through a general roster of employees, general employee equity and compensation data or other employee data provided in due diligence that is general in nature), during your investigation of the Company and its business in connection with the Possible Transaction, in each case without obtaining the prior written consent of the Company; provided that you may (i) make general solicitations for employment not specifically directed at the Company or any of its subsidiaries or their respective employees and employ any person who responds to such solicitations, (ii) solicit and/or hire any person who contacts such party or its Affiliates on his or her own initiative without any initial direct or indirect solicitation or encouragement by such party or its Affiliates (other than as permitted by the preceding clause (i) and (iii) solicit and/or hire any person whose employment with the other party and its subsidiaries previously has been terminated for at least 90 days.
7. Standstill. You hereby acknowledge that, except as otherwise invited in writing by the Company’s Board of Directors or a Representative thereof or otherwise agreed in writing by the Company, for a period of one year from the date of this letter agreement (the “Standstill Period”), neither you nor any of your Affiliates who are provided with Evaluation Material will: (a) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase a substantial portion of the Company’s assets or businesses, or similar transactions involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company; (b) (i) acquire beneficial ownership of any voting securities (including in derivative form) of the Company (collectively, a transaction specified in (a)(i), (a)(ii) and (b)(i) involving a majority of the Company’s outstanding capital stock or consolidated assets, is referred to as a “Business Combination”), (ii) propose or seek, whether alone or in concert with others, any “solicitation” of “proxies” (as such terms are used in the rules of the Securities and Exchange Commission) or consents to vote any voting securities (including in derivative form) of the Company, (iii) nominate any person as a director of the Company, or (iv) propose any matter to be voted upon by the stockholders of the Company; (c) form, join or in any way participate in a third party “group” (as such term is used in the rules of the Securities and Exchange Commission) with respect to any voting securities (including in derivative form) of the Company or a Business Combination involving the Company; (d) request the Company (or any of its officers, directors or Representatives), directly or indirectly, to amend or waive any provision of this paragraph (including this sentence); or (e) take any action that would reasonably be expected to require the Company to make a public announcement regarding a potential Business Combination; provided, however, that nothing in this paragraph shall prohibit you from making a confidential proposal to the Company or the Company’s Board of Directors for a transaction involving a Business Combination (including a Possible Transaction) in a manner that would not reasonably be expected to require either party to make public disclosure with respect thereto.
Notwithstanding anything to the contrary in this letter agreement, the Standstill Period shall automatically terminate and cease to be of any further force and effect upon the earliest to occur of any of the following: (a) the Company publicly announcing its or its Board of Directors’ approval or recommendation of (A) any person or “group” (as such term is used in the rules of the Securities and Exchange Commission) commencing or publicly announcing an intention to commence a tender or exchange offer that, if consummated, would make such person or “group” (as such term is used in the rules of the Securities and Exchange Commission) (or any of their respective Affiliates) the beneficial owner (within the meaning of Section 13(d)(1) of the Exchange Act) of 50% or more of the Company’s equity securities, (B) an offer or proposal by any person or “group” (as such term is used in the rules of the Securities and Exchange Commission) which if effected would result in the acquisition (whether by merger, consolidation, recapitalization, liquidation or otherwise) by such person or “group” (as such term is used in the rules of the Securities and Exchange Commission) of 50% or more of such other party’s equity securities or a majority of the consolidated assets of the Company and its Affiliates (any such transaction, an “Acquisition Transaction”), or (C) any Acquisition Transaction, or (b) the Company entering into or publicly announcing its intention to enter into a definitive agreement with a third party to effectuate an Acquisition Transaction. Notwithstanding anything to the contrary in this letter agreement, you may own or acquire, or propose to acquire, any assets or securities of the Company in connection with a transaction subject to approval pursuant to proceedings under the United States Bankruptcy Code.
8. No Representation of Accuracy. Although the Company has endeavored to include in the Evaluation Material information which it believes to be relevant for the purpose of your investigation, you understand that none of the Company or its Representatives have made or make in this letter agreement any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material. You agree that none of the Company or its Representatives shall have any liability to you or any of your Representatives pursuant to this letter agreement resulting from the selection, use or content of the Evaluation Material by you or your Affiliates or Representatives. You further agree that you and your Representatives will be entitled to rely solely on such representations and warranties as may be included in a definitive agreement relating to a Possible Transaction, subject to such limitations and restrictions as may be contained therein.
9. Destruction or Return of Evaluation Material. You may determine not to pursue a Possible Transaction at any time and for any, or no, reason, and will promptly inform the Company at any time such a decision is made. Upon the Company’s demand, you shall, at your sole option, either promptly (a) destroy the Evaluation Material and any copies thereof, or (b) return to the Company all Evaluation Material and any copies thereof, and, in either case, confirm in writing to the Company that all such material has been destroyed or returned, as applicable, in compliance with this letter agreement. It is understood that information in an intangible or electronic format containing Evaluation Material cannot be removed, erased or otherwise deleted from archival systems (also known as “computer or system back-ups”) but that such information will continue to be protected under the confidentiality requirements and non-use limitations contained in this letter agreement, and you and your Representatives shall continue to be bound by the obligations of confidentiality and non-use hereunder. Notwithstanding the foregoing, you and your Representatives may retain one copy of any work product prepared by you or them that contains Evaluation Material to the extent necessary or advisable pursuant to applicable legal or regulatory requirements, professional standards or reasonable business practice; provided that you and such Representatives shall continue to be bound by the obligations of confidentiality and non-use hereunder with respect to such work product.
10. Injunctive Relief. You acknowledge and agree that money damages may not be a sufficient remedy for any breach of this letter agreement by you or your Representatives and that the Company shall be entitled to seek equitable relief, including injunction and specific performance, as a remedy for any such breach, without proof of damages, and each party further agrees to waive, and shall cause its Representatives to waive, any requirement for the securing or posting of any bond in connection with any such remedy. Such remedies shall not be the exclusive remedies for a breach of this letter agreement, but will be in addition to all other remedies available at law or in equity.
11. Definitive Agreement. You agree that unless and until a definitive agreement between the Company and you with respect to the Possible Transaction (a “Definitive Agreement”) has been executed and delivered, neither the Company nor you will be under any legal obligation of any kind whatsoever with respect to a Possible Transaction by virtue of this letter agreement or any other written or oral expression except, in the case of this letter agreement, for the matters specifically agreed to herein. In addition, you hereby waive, in advance, any claims (including, without limitation, breach of contract) in connection with any Possible Transaction other than claims under any Definitive Agreement relating to a Possible Transaction or under this letter agreement. For purposes of this letter agreement, the term “Definitive Agreement” does not include an executed letter of intent or any other preliminary written agreement, nor does it include any oral acceptance of an offer or bid by you. The agreement set forth in this paragraph may be modified or waived only by a separate writing by the Company and you expressly so modifying or waiving such agreement.
12. Process Agreements. You acknowledge that (a) the Company shall be free to conduct a process for a Possible Transaction as it in its sole discretion shall determine (including, without limitation, negotiating with any other prospective buyers and entering into a definitive agreement without prior notice to you or to any other person), and (b) any procedures relating to such Possible Transaction may be implemented or changed at any time prior to entry into a definitive agreement relating to such Possible Transaction without notice to you or any other person. The Company reserves the right at any time, in its sole discretion, for any reason or no reason, to reject any and all proposals made by you or any of your Representatives with regard to the Possible Transaction, to terminate discussions and negotiations with you, and to refuse to provide any further access to Evaluation Material. You further acknowledge that the Company has entered into an Agreement and Plan of Merger with REGENXBIO, Inc. and Muddy Charles Acquisition Corporation, dated August 24, 2017 (the “Merger Agreement”), and that you have read the Merger Agreement in its entirety, including Sections 5.3 and 5.4 therein. You agree that nothing in this letter agreement shall be deemed to restrict the Company’s ability to comply with the provisions of the Merger Agreement, including Sections 5.3 and 5.4 therein, and in the case of any inconsistency between this letter agreement and the Merger Agreement, the terms of the Merger Agreement shall control with respect to any action by the Company.
13. No Waiver. No failure or delay by the Company or any of its Representatives in exercising any right, power or privilege under this letter agreement shall operate as a waiver thereof, and no amendment, modification or waiver hereof shall be effective, unless in writing and signed by an officer or other authorized person of the Company hereto.
14. Severability. The illegality, invalidity or unenforceability of any provision hereof under the laws of any jurisdiction shall not affect its legality, validity or enforceability under the laws of any other jurisdiction, nor the legality, validity or enforceability of any other provision.
15. Governing Law and Forum. This letter agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware. The parties hereby irrevocably and unconditionally consent to the exclusive jurisdiction of the Chancery Courts in the State of Delaware and the United States District Court for the District of the State of Delaware for any action, suit or proceeding arising out of or relating to this letter agreement or the Possible Transaction, and agree not to commence any action, suit or proceeding related thereto except in such courts.
16. Counterparts. This letter agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute the same agreement. One or more counterparts of this letter agreement may be delivered by facsimile or pdf electronic transmission, with the intention that they shall have the same effect as an original counterpart hereof.
17. Term. This letter agreement shall terminate on the date that is two years following the date hereof.
Very truly yours,
Dimension Therapeutics, Inc.
By: /s/ Annalisa Jenkins, MBBS, FRCP
Name: Annalisa Jenkins, MBBS, FRCP
Title: President & Chief Executive Officer
Confirmed and Agreed to:
Ultragenyx Pharmaceutical Inc.
By: /s/ Shalini Sharp
Name: Shalini Sharp
Title: Chief Financial Officer
Date: September 19, 2017
| Entailment |
620_nda-13 | 620_nda-13_0 | Q: Receiving Party may acquire information similar to Confidential Information from a third party.
Text: Exhibit (e)(2)
September 19, 2017
Ultragenyx Pharmaceutical Inc.
60 Leveroni Court
Novato, California 94949
Attention: Karah Parschauer, General Counsel
Ladies and Gentlemen:
In connection with your consideration of a possible negotiated business transaction involving Dimension Therapeutics, Inc. (the “Company”) and you (the “Possible Transaction”), and in order to evaluate, consider, negotiate and/or implement the Possible Transaction, you have requested information concerning the Company that is confidential and proprietary. As a condition to being furnished such confidential and proprietary information, you agree to treat any such information, whether written or oral, concerning the Company or any of its subsidiaries, Affiliates (as such term is defined in Rule 12b-2 of the Securities Exchange Act of 1934, as amended) or divisions (whether prepared by the Company, its advisors or otherwise) that is furnished on or after the date hereof to you by or on behalf of the Company (herein collectively referred to as the “Evaluation Material”) in accordance with the provisions of this letter agreement and to take or abstain from taking certain other actions herein set forth. The term “Evaluation Material” includes, without limitation, all notes, analyses, compilations, spreadsheets, data, reports, studies, interpretations or other documents furnished by or on behalf of the Company to you or your Representatives (as defined below) or prepared by you or your Representatives, to the extent such materials reflect or are based upon the Evaluation Material. The term “Evaluation Material” does not include information that (a) is or becomes available to you on a nonconfidential basis from a source other than the Company or its Representatives; provided that such source is not known by you to be bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation to, the Company that prohibits such disclosure, (b) is or becomes available to the public other than as a result of a disclosure by you or your Representatives in violation of this letter agreement, (c) you can demonstrate is in your possession or the possession of your Representatives prior to receipt from the Company or its Representatives pursuant to this letter agreement, or (d) has been or is independently developed by you or your Representatives without the use of the Evaluation Material or in violation of the terms of this letter agreement. For purposes of this letter agreement the term “Representatives” shall include any person, its Affiliates and such person’s and its Affiliates’ respective directors, officers, employees, agents, attorneys, accountants, financial advisors and other professional representatives or advisors.
1. Non-Disclosure and Use of Evaluation Material. You hereby agree that the Evaluation Material will be kept confidential and used solely for the purpose of evaluating, considering,negotiating and/or implementing the Possible Transaction; provided, however, that the Evaluation Material may be disclosed (i) to any of your Representatives who need to know such information solely for the purpose of evaluating, considering,
negotiating and/or implementing a Possible Transaction, (ii) pursuant to an External Demand in accordance with paragraph 4 of this letter agreement and (iii) as the Company may otherwise consent in writing. All such Representatives shall (A) be informed by you of the confidential nature of the Evaluation Material, (B) agree to treat the Evaluation Material in accordance with this letter agreement, and (C) be advised of the terms of this letter agreement and directed to comply with the terms hereof to the same extent as if they were parties to this letter agreement. You agree to be responsible for any breaches of any of the provisions of this letter agreement by any of your Representatives (it being understood that such responsibility shall be in addition to and not by way of limitation of any right or remedy the Company may have against your Representatives with respect to such breach).
2. Securities Laws. You hereby acknowledge that you and your Representatives are aware, and will advise your Representatives, that the Evaluation Material may contain material, non-public information about the Company and that United States securities laws prohibit any person who has material, non-public information about a company from purchasing or selling any securities of the Company while in possession of such information.
3. Transaction Information. You will not, and will direct your Representatives not to, disclose to any person (except (i) to your Representatives who need to know such information for the purpose of evaluating, considering, negotiating and/or implementing a Possible Transaction and (ii) as the Company may otherwise consent in writing) either the fact that discussions or negotiations are taking place concerning the Possible Transaction or any of the terms, conditions or other facts with respect to the Possible Transaction, including the status thereof or that Evaluation Material has been made available to you (such information, “Transaction Information”); provided, however, that disclosure of Transaction Information pursuant to an External Demand shall be governed by paragraph 4 of this letter agreement; Without limiting the generality of the foregoing, you further agree that you will not share the Evaluation Material with or enter into any agreement, arrangement or understanding, or any discussions which would reasonably be expected to lead to an agreement, arrangement or understanding, with any other person, including other potential bidders and equity or debt financing sources (other than your Representatives as permitted above) regarding a Possible Transaction involving the Company without the prior written consent of the Company and only upon such person executing a confidentiality agreement in favor of the Company with terms and conditions substantially consistent with this letter agreement.
4. Required Disclosure. Notwithstanding anything to the contrary provided in this letter agreement, in the event you or any of your Representatives receive a request or are required by any law, rule, order, decree or regulation (including, without limitation, applicable securities or antitrust laws and applicable stock exchange rules) or any regulatory authority or legal, administrative or judicial process (including, without limitation, or by deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process or pursuant to a formal request from a regulatory examiner) (any such requested or required disclosure, an “External Demand”) to disclose all or any part of the Evaluation Material or the Transaction Information, you or your Representatives, as the case may be, agree, to the extent permissible and reasonably practicable, to (a) promptly notify the Company of the existence, terms and circumstances surrounding such External Demand or Permitted Disclosure and (b) assist the Company, at the Company’s request and expense, in seeking a protective order or other appropriate remedy to the extent available under the circumstances. In the event that such protective order or other remedy is not obtained or that the Company waives compliance with the provisions hereof, (i) you or your Representatives, as the case may be, may disclose only that portion of the Evaluation Material or Transaction Information which you or your Representatives are advised by counsel is required to be disclosed and to only those persons to whom you or your Representatives are advised by counsel are required to receive such information, and you or your Representatives shall exercise reasonable efforts to obtain assurance that confidential treatment will be accorded such Evaluation Material or Transaction Information, and (ii) you or your Representatives shall not be liable for such disclosure.
5. Communications and Requests. You agree that unless otherwise agreed to by the Company in writing, (a) all communications regarding the Possible Transaction, (b) requests for additional information regarding the Possible Transaction, (c) requests for facility tours or management meetings in connection with the Possible Transaction, and (d) discussions or questions regarding procedures, timing and terms of the Possible Transaction, will be submitted or directed exclusively to Andrew Weisenfeld ([email protected], 212-887-2102) of MTS Health Partners, L.P., the financial advisor to the Company or such other persons designated by the Company for such purpose.
6. Non-Solicit. You agree that, for a period of one year from the date of this letter agreement, neither you nor any of your Affiliates who are provided with Evaluation Material or become aware of your discussions regarding the Possible Transaction will, directly or indirectly, solicit for employment or employ (a) any individual serving as an executive officer of the Company, or (b) any employee of the Company or any of its subsidiaries with whom you have had substantial contact, or who is specifically identified to you (other than through a general roster of employees, general employee equity and compensation data or other employee data provided in due diligence that is general in nature), during your investigation of the Company and its business in connection with the Possible Transaction, in each case without obtaining the prior written consent of the Company; provided that you may (i) make general solicitations for employment not specifically directed at the Company or any of its subsidiaries or their respective employees and employ any person who responds to such solicitations, (ii) solicit and/or hire any person who contacts such party or its Affiliates on his or her own initiative without any initial direct or indirect solicitation or encouragement by such party or its Affiliates (other than as permitted by the preceding clause (i) and (iii) solicit and/or hire any person whose employment with the other party and its subsidiaries previously has been terminated for at least 90 days.
7. Standstill. You hereby acknowledge that, except as otherwise invited in writing by the Company’s Board of Directors or a Representative thereof or otherwise agreed in writing by the Company, for a period of one year from the date of this letter agreement (the “Standstill Period”), neither you nor any of your Affiliates who are provided with Evaluation Material will: (a) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase a substantial portion of the Company’s assets or businesses, or similar transactions involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company; (b) (i) acquire beneficial ownership of any voting securities (including in derivative form) of the Company (collectively, a transaction specified in (a)(i), (a)(ii) and (b)(i) involving a majority of the Company’s outstanding capital stock or consolidated assets, is referred to as a “Business Combination”), (ii) propose or seek, whether alone or in concert with others, any “solicitation” of “proxies” (as such terms are used in the rules of the Securities and Exchange Commission) or consents to vote any voting securities (including in derivative form) of the Company, (iii) nominate any person as a director of the Company, or (iv) propose any matter to be voted upon by the stockholders of the Company; (c) form, join or in any way participate in a third party “group” (as such term is used in the rules of the Securities and Exchange Commission) with respect to any voting securities (including in derivative form) of the Company or a Business Combination involving the Company; (d) request the Company (or any of its officers, directors or Representatives), directly or indirectly, to amend or waive any provision of this paragraph (including this sentence); or (e) take any action that would reasonably be expected to require the Company to make a public announcement regarding a potential Business Combination; provided, however, that nothing in this paragraph shall prohibit you from making a confidential proposal to the Company or the Company’s Board of Directors for a transaction involving a Business Combination (including a Possible Transaction) in a manner that would not reasonably be expected to require either party to make public disclosure with respect thereto.
Notwithstanding anything to the contrary in this letter agreement, the Standstill Period shall automatically terminate and cease to be of any further force and effect upon the earliest to occur of any of the following: (a) the Company publicly announcing its or its Board of Directors’ approval or recommendation of (A) any person or “group” (as such term is used in the rules of the Securities and Exchange Commission) commencing or publicly announcing an intention to commence a tender or exchange offer that, if consummated, would make such person or “group” (as such term is used in the rules of the Securities and Exchange Commission) (or any of their respective Affiliates) the beneficial owner (within the meaning of Section 13(d)(1) of the Exchange Act) of 50% or more of the Company’s equity securities, (B) an offer or proposal by any person or “group” (as such term is used in the rules of the Securities and Exchange Commission) which if effected would result in the acquisition (whether by merger, consolidation, recapitalization, liquidation or otherwise) by such person or “group” (as such term is used in the rules of the Securities and Exchange Commission) of 50% or more of such other party’s equity securities or a majority of the consolidated assets of the Company and its Affiliates (any such transaction, an “Acquisition Transaction”), or (C) any Acquisition Transaction, or (b) the Company entering into or publicly announcing its intention to enter into a definitive agreement with a third party to effectuate an Acquisition Transaction. Notwithstanding anything to the contrary in this letter agreement, you may own or acquire, or propose to acquire, any assets or securities of the Company in connection with a transaction subject to approval pursuant to proceedings under the United States Bankruptcy Code.
8. No Representation of Accuracy. Although the Company has endeavored to include in the Evaluation Material information which it believes to be relevant for the purpose of your investigation, you understand that none of the Company or its Representatives have made or make in this letter agreement any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material. You agree that none of the Company or its Representatives shall have any liability to you or any of your Representatives pursuant to this letter agreement resulting from the selection, use or content of the Evaluation Material by you or your Affiliates or Representatives. You further agree that you and your Representatives will be entitled to rely solely on such representations and warranties as may be included in a definitive agreement relating to a Possible Transaction, subject to such limitations and restrictions as may be contained therein.
9. Destruction or Return of Evaluation Material. You may determine not to pursue a Possible Transaction at any time and for any, or no, reason, and will promptly inform the Company at any time such a decision is made. Upon the Company’s demand, you shall, at your sole option, either promptly (a) destroy the Evaluation Material and any copies thereof, or (b) return to the Company all Evaluation Material and any copies thereof, and, in either case, confirm in writing to the Company that all such material has been destroyed or returned, as applicable, in compliance with this letter agreement. It is understood that information in an intangible or electronic format containing Evaluation Material cannot be removed, erased or otherwise deleted from archival systems (also known as “computer or system back-ups”) but that such information will continue to be protected under the confidentiality requirements and non-use limitations contained in this letter agreement, and you and your Representatives shall continue to be bound by the obligations of confidentiality and non-use hereunder. Notwithstanding the foregoing, you and your Representatives may retain one copy of any work product prepared by you or them that contains Evaluation Material to the extent necessary or advisable pursuant to applicable legal or regulatory requirements, professional standards or reasonable business practice; provided that you and such Representatives shall continue to be bound by the obligations of confidentiality and non-use hereunder with respect to such work product.
10. Injunctive Relief. You acknowledge and agree that money damages may not be a sufficient remedy for any breach of this letter agreement by you or your Representatives and that the Company shall be entitled to seek equitable relief, including injunction and specific performance, as a remedy for any such breach, without proof of damages, and each party further agrees to waive, and shall cause its Representatives to waive, any requirement for the securing or posting of any bond in connection with any such remedy. Such remedies shall not be the exclusive remedies for a breach of this letter agreement, but will be in addition to all other remedies available at law or in equity.
11. Definitive Agreement. You agree that unless and until a definitive agreement between the Company and you with respect to the Possible Transaction (a “Definitive Agreement”) has been executed and delivered, neither the Company nor you will be under any legal obligation of any kind whatsoever with respect to a Possible Transaction by virtue of this letter agreement or any other written or oral expression except, in the case of this letter agreement, for the matters specifically agreed to herein. In addition, you hereby waive, in advance, any claims (including, without limitation, breach of contract) in connection with any Possible Transaction other than claims under any Definitive Agreement relating to a Possible Transaction or under this letter agreement. For purposes of this letter agreement, the term “Definitive Agreement” does not include an executed letter of intent or any other preliminary written agreement, nor does it include any oral acceptance of an offer or bid by you. The agreement set forth in this paragraph may be modified or waived only by a separate writing by the Company and you expressly so modifying or waiving such agreement.
12. Process Agreements. You acknowledge that (a) the Company shall be free to conduct a process for a Possible Transaction as it in its sole discretion shall determine (including, without limitation, negotiating with any other prospective buyers and entering into a definitive agreement without prior notice to you or to any other person), and (b) any procedures relating to such Possible Transaction may be implemented or changed at any time prior to entry into a definitive agreement relating to such Possible Transaction without notice to you or any other person. The Company reserves the right at any time, in its sole discretion, for any reason or no reason, to reject any and all proposals made by you or any of your Representatives with regard to the Possible Transaction, to terminate discussions and negotiations with you, and to refuse to provide any further access to Evaluation Material. You further acknowledge that the Company has entered into an Agreement and Plan of Merger with REGENXBIO, Inc. and Muddy Charles Acquisition Corporation, dated August 24, 2017 (the “Merger Agreement”), and that you have read the Merger Agreement in its entirety, including Sections 5.3 and 5.4 therein. You agree that nothing in this letter agreement shall be deemed to restrict the Company’s ability to comply with the provisions of the Merger Agreement, including Sections 5.3 and 5.4 therein, and in the case of any inconsistency between this letter agreement and the Merger Agreement, the terms of the Merger Agreement shall control with respect to any action by the Company.
13. No Waiver. No failure or delay by the Company or any of its Representatives in exercising any right, power or privilege under this letter agreement shall operate as a waiver thereof, and no amendment, modification or waiver hereof shall be effective, unless in writing and signed by an officer or other authorized person of the Company hereto.
14. Severability. The illegality, invalidity or unenforceability of any provision hereof under the laws of any jurisdiction shall not affect its legality, validity or enforceability under the laws of any other jurisdiction, nor the legality, validity or enforceability of any other provision.
15. Governing Law and Forum. This letter agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware. The parties hereby irrevocably and unconditionally consent to the exclusive jurisdiction of the Chancery Courts in the State of Delaware and the United States District Court for the District of the State of Delaware for any action, suit or proceeding arising out of or relating to this letter agreement or the Possible Transaction, and agree not to commence any action, suit or proceeding related thereto except in such courts.
16. Counterparts. This letter agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute the same agreement. One or more counterparts of this letter agreement may be delivered by facsimile or pdf electronic transmission, with the intention that they shall have the same effect as an original counterpart hereof.
17. Term. This letter agreement shall terminate on the date that is two years following the date hereof.
Very truly yours,
Dimension Therapeutics, Inc.
By: /s/ Annalisa Jenkins, MBBS, FRCP
Name: Annalisa Jenkins, MBBS, FRCP
Title: President & Chief Executive Officer
Confirmed and Agreed to:
Ultragenyx Pharmaceutical Inc.
By: /s/ Shalini Sharp
Name: Shalini Sharp
Title: Chief Financial Officer
Date: September 19, 2017
| Entailment |
620_nda-5 | 620_nda-5_0 | Q: Receiving Party may share some Confidential Information with some of Receiving Party's employees.
Text: Exhibit (e)(2)
September 19, 2017
Ultragenyx Pharmaceutical Inc.
60 Leveroni Court
Novato, California 94949
Attention: Karah Parschauer, General Counsel
Ladies and Gentlemen:
In connection with your consideration of a possible negotiated business transaction involving Dimension Therapeutics, Inc. (the “Company”) and you (the “Possible Transaction”), and in order to evaluate, consider, negotiate and/or implement the Possible Transaction, you have requested information concerning the Company that is confidential and proprietary. As a condition to being furnished such confidential and proprietary information, you agree to treat any such information, whether written or oral, concerning the Company or any of its subsidiaries, Affiliates (as such term is defined in Rule 12b-2 of the Securities Exchange Act of 1934, as amended) or divisions (whether prepared by the Company, its advisors or otherwise) that is furnished on or after the date hereof to you by or on behalf of the Company (herein collectively referred to as the “Evaluation Material”) in accordance with the provisions of this letter agreement and to take or abstain from taking certain other actions herein set forth. The term “Evaluation Material” includes, without limitation, all notes, analyses, compilations, spreadsheets, data, reports, studies, interpretations or other documents furnished by or on behalf of the Company to you or your Representatives (as defined below) or prepared by you or your Representatives, to the extent such materials reflect or are based upon the Evaluation Material. The term “Evaluation Material” does not include information that (a) is or becomes available to you on a nonconfidential basis from a source other than the Company or its Representatives; provided that such source is not known by you to be bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation to, the Company that prohibits such disclosure, (b) is or becomes available to the public other than as a result of a disclosure by you or your Representatives in violation of this letter agreement, (c) you can demonstrate is in your possession or the possession of your Representatives prior to receipt from the Company or its Representatives pursuant to this letter agreement, or (d) has been or is independently developed by you or your Representatives without the use of the Evaluation Material or in violation of the terms of this letter agreement. For purposes of this letter agreement the term “Representatives” shall include any person, its Affiliates and such person’s and its Affiliates’ respective directors, officers, employees, agents, attorneys, accountants, financial advisors and other professional representatives or advisors.
1. Non-Disclosure and Use of Evaluation Material. You hereby agree that the Evaluation Material will be kept confidential and used solely for the purpose of evaluating, considering,negotiating and/or implementing the Possible Transaction; provided, however, that the Evaluation Material may be disclosed (i) to any of your Representatives who need to know such information solely for the purpose of evaluating, considering,
negotiating and/or implementing a Possible Transaction, (ii) pursuant to an External Demand in accordance with paragraph 4 of this letter agreement and (iii) as the Company may otherwise consent in writing. All such Representatives shall (A) be informed by you of the confidential nature of the Evaluation Material, (B) agree to treat the Evaluation Material in accordance with this letter agreement, and (C) be advised of the terms of this letter agreement and directed to comply with the terms hereof to the same extent as if they were parties to this letter agreement. You agree to be responsible for any breaches of any of the provisions of this letter agreement by any of your Representatives (it being understood that such responsibility shall be in addition to and not by way of limitation of any right or remedy the Company may have against your Representatives with respect to such breach).
2. Securities Laws. You hereby acknowledge that you and your Representatives are aware, and will advise your Representatives, that the Evaluation Material may contain material, non-public information about the Company and that United States securities laws prohibit any person who has material, non-public information about a company from purchasing or selling any securities of the Company while in possession of such information.
3. Transaction Information. You will not, and will direct your Representatives not to, disclose to any person (except (i) to your Representatives who need to know such information for the purpose of evaluating, considering, negotiating and/or implementing a Possible Transaction and (ii) as the Company may otherwise consent in writing) either the fact that discussions or negotiations are taking place concerning the Possible Transaction or any of the terms, conditions or other facts with respect to the Possible Transaction, including the status thereof or that Evaluation Material has been made available to you (such information, “Transaction Information”); provided, however, that disclosure of Transaction Information pursuant to an External Demand shall be governed by paragraph 4 of this letter agreement; Without limiting the generality of the foregoing, you further agree that you will not share the Evaluation Material with or enter into any agreement, arrangement or understanding, or any discussions which would reasonably be expected to lead to an agreement, arrangement or understanding, with any other person, including other potential bidders and equity or debt financing sources (other than your Representatives as permitted above) regarding a Possible Transaction involving the Company without the prior written consent of the Company and only upon such person executing a confidentiality agreement in favor of the Company with terms and conditions substantially consistent with this letter agreement.
4. Required Disclosure. Notwithstanding anything to the contrary provided in this letter agreement, in the event you or any of your Representatives receive a request or are required by any law, rule, order, decree or regulation (including, without limitation, applicable securities or antitrust laws and applicable stock exchange rules) or any regulatory authority or legal, administrative or judicial process (including, without limitation, or by deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process or pursuant to a formal request from a regulatory examiner) (any such requested or required disclosure, an “External Demand”) to disclose all or any part of the Evaluation Material or the Transaction Information, you or your Representatives, as the case may be, agree, to the extent permissible and reasonably practicable, to (a) promptly notify the Company of the existence, terms and circumstances surrounding such External Demand or Permitted Disclosure and (b) assist the Company, at the Company’s request and expense, in seeking a protective order or other appropriate remedy to the extent available under the circumstances. In the event that such protective order or other remedy is not obtained or that the Company waives compliance with the provisions hereof, (i) you or your Representatives, as the case may be, may disclose only that portion of the Evaluation Material or Transaction Information which you or your Representatives are advised by counsel is required to be disclosed and to only those persons to whom you or your Representatives are advised by counsel are required to receive such information, and you or your Representatives shall exercise reasonable efforts to obtain assurance that confidential treatment will be accorded such Evaluation Material or Transaction Information, and (ii) you or your Representatives shall not be liable for such disclosure.
5. Communications and Requests. You agree that unless otherwise agreed to by the Company in writing, (a) all communications regarding the Possible Transaction, (b) requests for additional information regarding the Possible Transaction, (c) requests for facility tours or management meetings in connection with the Possible Transaction, and (d) discussions or questions regarding procedures, timing and terms of the Possible Transaction, will be submitted or directed exclusively to Andrew Weisenfeld ([email protected], 212-887-2102) of MTS Health Partners, L.P., the financial advisor to the Company or such other persons designated by the Company for such purpose.
6. Non-Solicit. You agree that, for a period of one year from the date of this letter agreement, neither you nor any of your Affiliates who are provided with Evaluation Material or become aware of your discussions regarding the Possible Transaction will, directly or indirectly, solicit for employment or employ (a) any individual serving as an executive officer of the Company, or (b) any employee of the Company or any of its subsidiaries with whom you have had substantial contact, or who is specifically identified to you (other than through a general roster of employees, general employee equity and compensation data or other employee data provided in due diligence that is general in nature), during your investigation of the Company and its business in connection with the Possible Transaction, in each case without obtaining the prior written consent of the Company; provided that you may (i) make general solicitations for employment not specifically directed at the Company or any of its subsidiaries or their respective employees and employ any person who responds to such solicitations, (ii) solicit and/or hire any person who contacts such party or its Affiliates on his or her own initiative without any initial direct or indirect solicitation or encouragement by such party or its Affiliates (other than as permitted by the preceding clause (i) and (iii) solicit and/or hire any person whose employment with the other party and its subsidiaries previously has been terminated for at least 90 days.
7. Standstill. You hereby acknowledge that, except as otherwise invited in writing by the Company’s Board of Directors or a Representative thereof or otherwise agreed in writing by the Company, for a period of one year from the date of this letter agreement (the “Standstill Period”), neither you nor any of your Affiliates who are provided with Evaluation Material will: (a) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase a substantial portion of the Company’s assets or businesses, or similar transactions involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company; (b) (i) acquire beneficial ownership of any voting securities (including in derivative form) of the Company (collectively, a transaction specified in (a)(i), (a)(ii) and (b)(i) involving a majority of the Company’s outstanding capital stock or consolidated assets, is referred to as a “Business Combination”), (ii) propose or seek, whether alone or in concert with others, any “solicitation” of “proxies” (as such terms are used in the rules of the Securities and Exchange Commission) or consents to vote any voting securities (including in derivative form) of the Company, (iii) nominate any person as a director of the Company, or (iv) propose any matter to be voted upon by the stockholders of the Company; (c) form, join or in any way participate in a third party “group” (as such term is used in the rules of the Securities and Exchange Commission) with respect to any voting securities (including in derivative form) of the Company or a Business Combination involving the Company; (d) request the Company (or any of its officers, directors or Representatives), directly or indirectly, to amend or waive any provision of this paragraph (including this sentence); or (e) take any action that would reasonably be expected to require the Company to make a public announcement regarding a potential Business Combination; provided, however, that nothing in this paragraph shall prohibit you from making a confidential proposal to the Company or the Company’s Board of Directors for a transaction involving a Business Combination (including a Possible Transaction) in a manner that would not reasonably be expected to require either party to make public disclosure with respect thereto.
Notwithstanding anything to the contrary in this letter agreement, the Standstill Period shall automatically terminate and cease to be of any further force and effect upon the earliest to occur of any of the following: (a) the Company publicly announcing its or its Board of Directors’ approval or recommendation of (A) any person or “group” (as such term is used in the rules of the Securities and Exchange Commission) commencing or publicly announcing an intention to commence a tender or exchange offer that, if consummated, would make such person or “group” (as such term is used in the rules of the Securities and Exchange Commission) (or any of their respective Affiliates) the beneficial owner (within the meaning of Section 13(d)(1) of the Exchange Act) of 50% or more of the Company’s equity securities, (B) an offer or proposal by any person or “group” (as such term is used in the rules of the Securities and Exchange Commission) which if effected would result in the acquisition (whether by merger, consolidation, recapitalization, liquidation or otherwise) by such person or “group” (as such term is used in the rules of the Securities and Exchange Commission) of 50% or more of such other party’s equity securities or a majority of the consolidated assets of the Company and its Affiliates (any such transaction, an “Acquisition Transaction”), or (C) any Acquisition Transaction, or (b) the Company entering into or publicly announcing its intention to enter into a definitive agreement with a third party to effectuate an Acquisition Transaction. Notwithstanding anything to the contrary in this letter agreement, you may own or acquire, or propose to acquire, any assets or securities of the Company in connection with a transaction subject to approval pursuant to proceedings under the United States Bankruptcy Code.
8. No Representation of Accuracy. Although the Company has endeavored to include in the Evaluation Material information which it believes to be relevant for the purpose of your investigation, you understand that none of the Company or its Representatives have made or make in this letter agreement any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material. You agree that none of the Company or its Representatives shall have any liability to you or any of your Representatives pursuant to this letter agreement resulting from the selection, use or content of the Evaluation Material by you or your Affiliates or Representatives. You further agree that you and your Representatives will be entitled to rely solely on such representations and warranties as may be included in a definitive agreement relating to a Possible Transaction, subject to such limitations and restrictions as may be contained therein.
9. Destruction or Return of Evaluation Material. You may determine not to pursue a Possible Transaction at any time and for any, or no, reason, and will promptly inform the Company at any time such a decision is made. Upon the Company’s demand, you shall, at your sole option, either promptly (a) destroy the Evaluation Material and any copies thereof, or (b) return to the Company all Evaluation Material and any copies thereof, and, in either case, confirm in writing to the Company that all such material has been destroyed or returned, as applicable, in compliance with this letter agreement. It is understood that information in an intangible or electronic format containing Evaluation Material cannot be removed, erased or otherwise deleted from archival systems (also known as “computer or system back-ups”) but that such information will continue to be protected under the confidentiality requirements and non-use limitations contained in this letter agreement, and you and your Representatives shall continue to be bound by the obligations of confidentiality and non-use hereunder. Notwithstanding the foregoing, you and your Representatives may retain one copy of any work product prepared by you or them that contains Evaluation Material to the extent necessary or advisable pursuant to applicable legal or regulatory requirements, professional standards or reasonable business practice; provided that you and such Representatives shall continue to be bound by the obligations of confidentiality and non-use hereunder with respect to such work product.
10. Injunctive Relief. You acknowledge and agree that money damages may not be a sufficient remedy for any breach of this letter agreement by you or your Representatives and that the Company shall be entitled to seek equitable relief, including injunction and specific performance, as a remedy for any such breach, without proof of damages, and each party further agrees to waive, and shall cause its Representatives to waive, any requirement for the securing or posting of any bond in connection with any such remedy. Such remedies shall not be the exclusive remedies for a breach of this letter agreement, but will be in addition to all other remedies available at law or in equity.
11. Definitive Agreement. You agree that unless and until a definitive agreement between the Company and you with respect to the Possible Transaction (a “Definitive Agreement”) has been executed and delivered, neither the Company nor you will be under any legal obligation of any kind whatsoever with respect to a Possible Transaction by virtue of this letter agreement or any other written or oral expression except, in the case of this letter agreement, for the matters specifically agreed to herein. In addition, you hereby waive, in advance, any claims (including, without limitation, breach of contract) in connection with any Possible Transaction other than claims under any Definitive Agreement relating to a Possible Transaction or under this letter agreement. For purposes of this letter agreement, the term “Definitive Agreement” does not include an executed letter of intent or any other preliminary written agreement, nor does it include any oral acceptance of an offer or bid by you. The agreement set forth in this paragraph may be modified or waived only by a separate writing by the Company and you expressly so modifying or waiving such agreement.
12. Process Agreements. You acknowledge that (a) the Company shall be free to conduct a process for a Possible Transaction as it in its sole discretion shall determine (including, without limitation, negotiating with any other prospective buyers and entering into a definitive agreement without prior notice to you or to any other person), and (b) any procedures relating to such Possible Transaction may be implemented or changed at any time prior to entry into a definitive agreement relating to such Possible Transaction without notice to you or any other person. The Company reserves the right at any time, in its sole discretion, for any reason or no reason, to reject any and all proposals made by you or any of your Representatives with regard to the Possible Transaction, to terminate discussions and negotiations with you, and to refuse to provide any further access to Evaluation Material. You further acknowledge that the Company has entered into an Agreement and Plan of Merger with REGENXBIO, Inc. and Muddy Charles Acquisition Corporation, dated August 24, 2017 (the “Merger Agreement”), and that you have read the Merger Agreement in its entirety, including Sections 5.3 and 5.4 therein. You agree that nothing in this letter agreement shall be deemed to restrict the Company’s ability to comply with the provisions of the Merger Agreement, including Sections 5.3 and 5.4 therein, and in the case of any inconsistency between this letter agreement and the Merger Agreement, the terms of the Merger Agreement shall control with respect to any action by the Company.
13. No Waiver. No failure or delay by the Company or any of its Representatives in exercising any right, power or privilege under this letter agreement shall operate as a waiver thereof, and no amendment, modification or waiver hereof shall be effective, unless in writing and signed by an officer or other authorized person of the Company hereto.
14. Severability. The illegality, invalidity or unenforceability of any provision hereof under the laws of any jurisdiction shall not affect its legality, validity or enforceability under the laws of any other jurisdiction, nor the legality, validity or enforceability of any other provision.
15. Governing Law and Forum. This letter agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware. The parties hereby irrevocably and unconditionally consent to the exclusive jurisdiction of the Chancery Courts in the State of Delaware and the United States District Court for the District of the State of Delaware for any action, suit or proceeding arising out of or relating to this letter agreement or the Possible Transaction, and agree not to commence any action, suit or proceeding related thereto except in such courts.
16. Counterparts. This letter agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute the same agreement. One or more counterparts of this letter agreement may be delivered by facsimile or pdf electronic transmission, with the intention that they shall have the same effect as an original counterpart hereof.
17. Term. This letter agreement shall terminate on the date that is two years following the date hereof.
Very truly yours,
Dimension Therapeutics, Inc.
By: /s/ Annalisa Jenkins, MBBS, FRCP
Name: Annalisa Jenkins, MBBS, FRCP
Title: President & Chief Executive Officer
Confirmed and Agreed to:
Ultragenyx Pharmaceutical Inc.
By: /s/ Shalini Sharp
Name: Shalini Sharp
Title: Chief Financial Officer
Date: September 19, 2017
| Entailment |
620_nda-4 | 620_nda-4_0 | Q: Receiving Party shall not use any Confidential Information for any purpose other than the purposes stated in Agreement.
Text: Exhibit (e)(2)
September 19, 2017
Ultragenyx Pharmaceutical Inc.
60 Leveroni Court
Novato, California 94949
Attention: Karah Parschauer, General Counsel
Ladies and Gentlemen:
In connection with your consideration of a possible negotiated business transaction involving Dimension Therapeutics, Inc. (the “Company”) and you (the “Possible Transaction”), and in order to evaluate, consider, negotiate and/or implement the Possible Transaction, you have requested information concerning the Company that is confidential and proprietary. As a condition to being furnished such confidential and proprietary information, you agree to treat any such information, whether written or oral, concerning the Company or any of its subsidiaries, Affiliates (as such term is defined in Rule 12b-2 of the Securities Exchange Act of 1934, as amended) or divisions (whether prepared by the Company, its advisors or otherwise) that is furnished on or after the date hereof to you by or on behalf of the Company (herein collectively referred to as the “Evaluation Material”) in accordance with the provisions of this letter agreement and to take or abstain from taking certain other actions herein set forth. The term “Evaluation Material” includes, without limitation, all notes, analyses, compilations, spreadsheets, data, reports, studies, interpretations or other documents furnished by or on behalf of the Company to you or your Representatives (as defined below) or prepared by you or your Representatives, to the extent such materials reflect or are based upon the Evaluation Material. The term “Evaluation Material” does not include information that (a) is or becomes available to you on a nonconfidential basis from a source other than the Company or its Representatives; provided that such source is not known by you to be bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation to, the Company that prohibits such disclosure, (b) is or becomes available to the public other than as a result of a disclosure by you or your Representatives in violation of this letter agreement, (c) you can demonstrate is in your possession or the possession of your Representatives prior to receipt from the Company or its Representatives pursuant to this letter agreement, or (d) has been or is independently developed by you or your Representatives without the use of the Evaluation Material or in violation of the terms of this letter agreement. For purposes of this letter agreement the term “Representatives” shall include any person, its Affiliates and such person’s and its Affiliates’ respective directors, officers, employees, agents, attorneys, accountants, financial advisors and other professional representatives or advisors.
1. Non-Disclosure and Use of Evaluation Material. You hereby agree that the Evaluation Material will be kept confidential and used solely for the purpose of evaluating, considering,negotiating and/or implementing the Possible Transaction; provided, however, that the Evaluation Material may be disclosed (i) to any of your Representatives who need to know such information solely for the purpose of evaluating, considering,
negotiating and/or implementing a Possible Transaction, (ii) pursuant to an External Demand in accordance with paragraph 4 of this letter agreement and (iii) as the Company may otherwise consent in writing. All such Representatives shall (A) be informed by you of the confidential nature of the Evaluation Material, (B) agree to treat the Evaluation Material in accordance with this letter agreement, and (C) be advised of the terms of this letter agreement and directed to comply with the terms hereof to the same extent as if they were parties to this letter agreement. You agree to be responsible for any breaches of any of the provisions of this letter agreement by any of your Representatives (it being understood that such responsibility shall be in addition to and not by way of limitation of any right or remedy the Company may have against your Representatives with respect to such breach).
2. Securities Laws. You hereby acknowledge that you and your Representatives are aware, and will advise your Representatives, that the Evaluation Material may contain material, non-public information about the Company and that United States securities laws prohibit any person who has material, non-public information about a company from purchasing or selling any securities of the Company while in possession of such information.
3. Transaction Information. You will not, and will direct your Representatives not to, disclose to any person (except (i) to your Representatives who need to know such information for the purpose of evaluating, considering, negotiating and/or implementing a Possible Transaction and (ii) as the Company may otherwise consent in writing) either the fact that discussions or negotiations are taking place concerning the Possible Transaction or any of the terms, conditions or other facts with respect to the Possible Transaction, including the status thereof or that Evaluation Material has been made available to you (such information, “Transaction Information”); provided, however, that disclosure of Transaction Information pursuant to an External Demand shall be governed by paragraph 4 of this letter agreement; Without limiting the generality of the foregoing, you further agree that you will not share the Evaluation Material with or enter into any agreement, arrangement or understanding, or any discussions which would reasonably be expected to lead to an agreement, arrangement or understanding, with any other person, including other potential bidders and equity or debt financing sources (other than your Representatives as permitted above) regarding a Possible Transaction involving the Company without the prior written consent of the Company and only upon such person executing a confidentiality agreement in favor of the Company with terms and conditions substantially consistent with this letter agreement.
4. Required Disclosure. Notwithstanding anything to the contrary provided in this letter agreement, in the event you or any of your Representatives receive a request or are required by any law, rule, order, decree or regulation (including, without limitation, applicable securities or antitrust laws and applicable stock exchange rules) or any regulatory authority or legal, administrative or judicial process (including, without limitation, or by deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process or pursuant to a formal request from a regulatory examiner) (any such requested or required disclosure, an “External Demand”) to disclose all or any part of the Evaluation Material or the Transaction Information, you or your Representatives, as the case may be, agree, to the extent permissible and reasonably practicable, to (a) promptly notify the Company of the existence, terms and circumstances surrounding such External Demand or Permitted Disclosure and (b) assist the Company, at the Company’s request and expense, in seeking a protective order or other appropriate remedy to the extent available under the circumstances. In the event that such protective order or other remedy is not obtained or that the Company waives compliance with the provisions hereof, (i) you or your Representatives, as the case may be, may disclose only that portion of the Evaluation Material or Transaction Information which you or your Representatives are advised by counsel is required to be disclosed and to only those persons to whom you or your Representatives are advised by counsel are required to receive such information, and you or your Representatives shall exercise reasonable efforts to obtain assurance that confidential treatment will be accorded such Evaluation Material or Transaction Information, and (ii) you or your Representatives shall not be liable for such disclosure.
5. Communications and Requests. You agree that unless otherwise agreed to by the Company in writing, (a) all communications regarding the Possible Transaction, (b) requests for additional information regarding the Possible Transaction, (c) requests for facility tours or management meetings in connection with the Possible Transaction, and (d) discussions or questions regarding procedures, timing and terms of the Possible Transaction, will be submitted or directed exclusively to Andrew Weisenfeld ([email protected], 212-887-2102) of MTS Health Partners, L.P., the financial advisor to the Company or such other persons designated by the Company for such purpose.
6. Non-Solicit. You agree that, for a period of one year from the date of this letter agreement, neither you nor any of your Affiliates who are provided with Evaluation Material or become aware of your discussions regarding the Possible Transaction will, directly or indirectly, solicit for employment or employ (a) any individual serving as an executive officer of the Company, or (b) any employee of the Company or any of its subsidiaries with whom you have had substantial contact, or who is specifically identified to you (other than through a general roster of employees, general employee equity and compensation data or other employee data provided in due diligence that is general in nature), during your investigation of the Company and its business in connection with the Possible Transaction, in each case without obtaining the prior written consent of the Company; provided that you may (i) make general solicitations for employment not specifically directed at the Company or any of its subsidiaries or their respective employees and employ any person who responds to such solicitations, (ii) solicit and/or hire any person who contacts such party or its Affiliates on his or her own initiative without any initial direct or indirect solicitation or encouragement by such party or its Affiliates (other than as permitted by the preceding clause (i) and (iii) solicit and/or hire any person whose employment with the other party and its subsidiaries previously has been terminated for at least 90 days.
7. Standstill. You hereby acknowledge that, except as otherwise invited in writing by the Company’s Board of Directors or a Representative thereof or otherwise agreed in writing by the Company, for a period of one year from the date of this letter agreement (the “Standstill Period”), neither you nor any of your Affiliates who are provided with Evaluation Material will: (a) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase a substantial portion of the Company’s assets or businesses, or similar transactions involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company; (b) (i) acquire beneficial ownership of any voting securities (including in derivative form) of the Company (collectively, a transaction specified in (a)(i), (a)(ii) and (b)(i) involving a majority of the Company’s outstanding capital stock or consolidated assets, is referred to as a “Business Combination”), (ii) propose or seek, whether alone or in concert with others, any “solicitation” of “proxies” (as such terms are used in the rules of the Securities and Exchange Commission) or consents to vote any voting securities (including in derivative form) of the Company, (iii) nominate any person as a director of the Company, or (iv) propose any matter to be voted upon by the stockholders of the Company; (c) form, join or in any way participate in a third party “group” (as such term is used in the rules of the Securities and Exchange Commission) with respect to any voting securities (including in derivative form) of the Company or a Business Combination involving the Company; (d) request the Company (or any of its officers, directors or Representatives), directly or indirectly, to amend or waive any provision of this paragraph (including this sentence); or (e) take any action that would reasonably be expected to require the Company to make a public announcement regarding a potential Business Combination; provided, however, that nothing in this paragraph shall prohibit you from making a confidential proposal to the Company or the Company’s Board of Directors for a transaction involving a Business Combination (including a Possible Transaction) in a manner that would not reasonably be expected to require either party to make public disclosure with respect thereto.
Notwithstanding anything to the contrary in this letter agreement, the Standstill Period shall automatically terminate and cease to be of any further force and effect upon the earliest to occur of any of the following: (a) the Company publicly announcing its or its Board of Directors’ approval or recommendation of (A) any person or “group” (as such term is used in the rules of the Securities and Exchange Commission) commencing or publicly announcing an intention to commence a tender or exchange offer that, if consummated, would make such person or “group” (as such term is used in the rules of the Securities and Exchange Commission) (or any of their respective Affiliates) the beneficial owner (within the meaning of Section 13(d)(1) of the Exchange Act) of 50% or more of the Company’s equity securities, (B) an offer or proposal by any person or “group” (as such term is used in the rules of the Securities and Exchange Commission) which if effected would result in the acquisition (whether by merger, consolidation, recapitalization, liquidation or otherwise) by such person or “group” (as such term is used in the rules of the Securities and Exchange Commission) of 50% or more of such other party’s equity securities or a majority of the consolidated assets of the Company and its Affiliates (any such transaction, an “Acquisition Transaction”), or (C) any Acquisition Transaction, or (b) the Company entering into or publicly announcing its intention to enter into a definitive agreement with a third party to effectuate an Acquisition Transaction. Notwithstanding anything to the contrary in this letter agreement, you may own or acquire, or propose to acquire, any assets or securities of the Company in connection with a transaction subject to approval pursuant to proceedings under the United States Bankruptcy Code.
8. No Representation of Accuracy. Although the Company has endeavored to include in the Evaluation Material information which it believes to be relevant for the purpose of your investigation, you understand that none of the Company or its Representatives have made or make in this letter agreement any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material. You agree that none of the Company or its Representatives shall have any liability to you or any of your Representatives pursuant to this letter agreement resulting from the selection, use or content of the Evaluation Material by you or your Affiliates or Representatives. You further agree that you and your Representatives will be entitled to rely solely on such representations and warranties as may be included in a definitive agreement relating to a Possible Transaction, subject to such limitations and restrictions as may be contained therein.
9. Destruction or Return of Evaluation Material. You may determine not to pursue a Possible Transaction at any time and for any, or no, reason, and will promptly inform the Company at any time such a decision is made. Upon the Company’s demand, you shall, at your sole option, either promptly (a) destroy the Evaluation Material and any copies thereof, or (b) return to the Company all Evaluation Material and any copies thereof, and, in either case, confirm in writing to the Company that all such material has been destroyed or returned, as applicable, in compliance with this letter agreement. It is understood that information in an intangible or electronic format containing Evaluation Material cannot be removed, erased or otherwise deleted from archival systems (also known as “computer or system back-ups”) but that such information will continue to be protected under the confidentiality requirements and non-use limitations contained in this letter agreement, and you and your Representatives shall continue to be bound by the obligations of confidentiality and non-use hereunder. Notwithstanding the foregoing, you and your Representatives may retain one copy of any work product prepared by you or them that contains Evaluation Material to the extent necessary or advisable pursuant to applicable legal or regulatory requirements, professional standards or reasonable business practice; provided that you and such Representatives shall continue to be bound by the obligations of confidentiality and non-use hereunder with respect to such work product.
10. Injunctive Relief. You acknowledge and agree that money damages may not be a sufficient remedy for any breach of this letter agreement by you or your Representatives and that the Company shall be entitled to seek equitable relief, including injunction and specific performance, as a remedy for any such breach, without proof of damages, and each party further agrees to waive, and shall cause its Representatives to waive, any requirement for the securing or posting of any bond in connection with any such remedy. Such remedies shall not be the exclusive remedies for a breach of this letter agreement, but will be in addition to all other remedies available at law or in equity.
11. Definitive Agreement. You agree that unless and until a definitive agreement between the Company and you with respect to the Possible Transaction (a “Definitive Agreement”) has been executed and delivered, neither the Company nor you will be under any legal obligation of any kind whatsoever with respect to a Possible Transaction by virtue of this letter agreement or any other written or oral expression except, in the case of this letter agreement, for the matters specifically agreed to herein. In addition, you hereby waive, in advance, any claims (including, without limitation, breach of contract) in connection with any Possible Transaction other than claims under any Definitive Agreement relating to a Possible Transaction or under this letter agreement. For purposes of this letter agreement, the term “Definitive Agreement” does not include an executed letter of intent or any other preliminary written agreement, nor does it include any oral acceptance of an offer or bid by you. The agreement set forth in this paragraph may be modified or waived only by a separate writing by the Company and you expressly so modifying or waiving such agreement.
12. Process Agreements. You acknowledge that (a) the Company shall be free to conduct a process for a Possible Transaction as it in its sole discretion shall determine (including, without limitation, negotiating with any other prospective buyers and entering into a definitive agreement without prior notice to you or to any other person), and (b) any procedures relating to such Possible Transaction may be implemented or changed at any time prior to entry into a definitive agreement relating to such Possible Transaction without notice to you or any other person. The Company reserves the right at any time, in its sole discretion, for any reason or no reason, to reject any and all proposals made by you or any of your Representatives with regard to the Possible Transaction, to terminate discussions and negotiations with you, and to refuse to provide any further access to Evaluation Material. You further acknowledge that the Company has entered into an Agreement and Plan of Merger with REGENXBIO, Inc. and Muddy Charles Acquisition Corporation, dated August 24, 2017 (the “Merger Agreement”), and that you have read the Merger Agreement in its entirety, including Sections 5.3 and 5.4 therein. You agree that nothing in this letter agreement shall be deemed to restrict the Company’s ability to comply with the provisions of the Merger Agreement, including Sections 5.3 and 5.4 therein, and in the case of any inconsistency between this letter agreement and the Merger Agreement, the terms of the Merger Agreement shall control with respect to any action by the Company.
13. No Waiver. No failure or delay by the Company or any of its Representatives in exercising any right, power or privilege under this letter agreement shall operate as a waiver thereof, and no amendment, modification or waiver hereof shall be effective, unless in writing and signed by an officer or other authorized person of the Company hereto.
14. Severability. The illegality, invalidity or unenforceability of any provision hereof under the laws of any jurisdiction shall not affect its legality, validity or enforceability under the laws of any other jurisdiction, nor the legality, validity or enforceability of any other provision.
15. Governing Law and Forum. This letter agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware. The parties hereby irrevocably and unconditionally consent to the exclusive jurisdiction of the Chancery Courts in the State of Delaware and the United States District Court for the District of the State of Delaware for any action, suit or proceeding arising out of or relating to this letter agreement or the Possible Transaction, and agree not to commence any action, suit or proceeding related thereto except in such courts.
16. Counterparts. This letter agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute the same agreement. One or more counterparts of this letter agreement may be delivered by facsimile or pdf electronic transmission, with the intention that they shall have the same effect as an original counterpart hereof.
17. Term. This letter agreement shall terminate on the date that is two years following the date hereof.
Very truly yours,
Dimension Therapeutics, Inc.
By: /s/ Annalisa Jenkins, MBBS, FRCP
Name: Annalisa Jenkins, MBBS, FRCP
Title: President & Chief Executive Officer
Confirmed and Agreed to:
Ultragenyx Pharmaceutical Inc.
By: /s/ Shalini Sharp
Name: Shalini Sharp
Title: Chief Financial Officer
Date: September 19, 2017
| Entailment |
621_nda-11 | 621_nda-11_0 | Q: Receiving Party shall not reverse engineer any objects which embody Disclosing Party's Confidential Information.
Text: Exhibit 99.(d)(2)
MUTUAL NON-DISCLOSURE AGREEMENT
THIS MUTUAL NON-DISCLOSURE AGREEMENT (this “Agreement”), entered into as of October 9, 2018 (the “Effective Date”), governs the disclosure of information by and between Spark Therapeutics, Inc., a Delaware corporation, having an address at 3737 Market Street, Suite 1300, Philadelphia, PA (“Spark”), and Roche Holdings Inc, a Delaware company having an address at 1 DNA Way, South San Francisco, CA 94080 (“Company”). For purposes of this Agreement, references to each of Spark and Company, and corresponding references to disclosing party and receiving party herein, shall include the respective subsidiaries and other entities controlled, directly or indirectly by Spark or Company, as the case may be; provided, however, with respect to Company, the foregoing provision shall exclude Chugai Pharmaceutical Co., Ltd, 1-1 Nihonbashi-Muromachi 2-chome, Chuo-ku, Tokyo, 103-8324 (“Chugai”) unless the Company opts for such inclusion of Chugai and their respective subsidiaries by giving written notice to the Company.
1. Purpose. This Agreement is made in order for each party to disclose to the other, during the term of this Agreement, such scientific, technical, business and financial information as the disclosing party may elect to disclose so that the receiving party may use the same solely for the purpose of evaluating the Confidential Information internally in connection with evaluating a possible transaction between the parties relating to one, more or all of Spark’s gene therapy product candidates and/or assets (the “Purpose”) under terms that will protect the confidential and proprietary nature of such information.
2. Confidential Information. As used herein, “Confidential Information” will mean any and all scientific, technical, business and financial information, including third party information, that is furnished or disclosed, in whatever form or medium (regardless of whether tangible, intangible, visual, or oral), to the receiving party, before or after the Effective Date. “Confidential Information” includes but is not limited to: (a) patent and patent applications; (b) manufacturing, including process and know-how; (c) clinical trial design or results; (d) vendors; (e) trade secrets; and (f) other proprietary information, ideas, gene sequences, cell lines, samples, chemical compounds, assays, biological materials, techniques, sketches, drawings, works of authorship, models, inventions, know-how, processes, apparatuses, equipment, and formulae related to the current, future, and proposed products and services of each of the parties, and including without limitation, their respective information concerning research, experimental work, development, design details and specifications, engineering, financial information, procurement requirements, purchasing, manufacturing, customer lists, investors, employees, business and contractual relationships, business forecasts, analyst reports, sales and merchandising, marketing plans and any additional non-public information the disclosing party provides.
3. Obligations. Each receiving party agrees: (a) to use the disclosing party’s Confidential Information solely for the Purpose stated above and for no other reason; (b) to protect the confidentiality of the disclosing party’s Confidential Information; (c) not to disclose any of the disclosing party’s Confidential Information to anyone, except those employees, consultants or representatives of the receiving party or its Affiliates who have a “need to know” the information for the Purpose and who have signed confidentiality agreements or are otherwise bound by confidentiality and non-use obligations at least as restrictive as those contained herein; and (d) to notify appropriately such employees, consultants and representatives of the receiving party or its Affiliates that the disclosure is made in confidence and under the applicable confidentiality obligations. The receiving party agrees to be responsible for any breaches of any of the provisions of this Agreement by any of its employees, consultants or representatives. Each receiving party agrees that in the event permission is granted by the disclosing party to copy Confidential Information, each such copy will contain and state the same confidential or proprietary notices or legends, if any, that appear on the original.
4. Exceptions. The obligations and restrictions imposed by this Agreement will not apply to any Confidential Information that the receiving party can establish by competent evidence acceptable under applicable law and as deemed appropriate by the competent court: (a) is already known to the receiving party prior to the disclosing party’s disclosure; (b) is or becomes publicly available through no fault of the receiving party; (c) is obtained by the receiving party from a third party; or (d) is independently developed by the receiving party without use of or reference to any Confidential Information. Notwithstanding the foregoing, (i) any Confidential Information shall not be deemed to be within the foregoing exceptions merely because such information is embraced by more general information in the public domain or in the possession of the receiving party, and (ii) any combination of features shall not be deemed to be within the foregoing exceptions merely because individual features are in the public domain or in the possession of the receiving party, but only if the combination itself and its principle of operation are in the public domain or in the possession of the receiving party. Notwithstanding anything contained in this Agreement, other than in the case of an External Demand (as defined below), the receiving party may disclose either the fact that discussions or negotiations are taking place concerning the Purpose or any of the terms, conditions or other facts with respect to the Purpose, including the status thereof or that Confidential Information has been made available to the receiving party (such information, “Transaction Information”) if but only if (i) such disclosure is required under applicable securities or antitrust laws or under applicable stock exchange rules as determined based on advice of legal counsel and (ii) such disclosure requirement does not arise from a breach of this Agreement. In the event the receiving party receives a request or is required by deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process or pursuant to a formal request from a regulatory examiner (any such requested or required disclosure, an “External Demand”) to disclose all or any part of the Confidential Information of the disclosing party or the Transaction Information, the receiving party shall (1) immediately notify the disclosing party of the existence, terms and circumstances surrounding such External Demand, (2) consult with the disclosing party on the advisability of taking legally available steps to resist or narrow such request or disclosure, and (3) assist the disclosing party, at the disclosing party’s expense, in seeking a protective order or other appropriate remedy to the extent available under the circumstances. In the event that such protective order or other remedy is not obtained or that the disclosing party waives compliance with the provisions hereof, (x) the receiving party may disclose only that portion of the Confidential Information or Transaction Information which the receiving party is advised by counsel is legally required to be disclosed and to only those persons to whom the receiving party is advised by counsel are legally required to receive such information, and the receiving party shall exercise commercially reasonable efforts to obtain assurance that confidential treatment will be accorded such Confidential Information or Transaction Information, and (y) the receiving party shall not be liable for such disclosure, unless such disclosure was caused by or resulted from a previous disclosure by the receiving party not permitted by this Agreement.
5. Handling of Information and Materials. Confidential Information will not be reproduced in any form except as required to accomplish the Purpose of this Agreement. Any reproduction of any Confidential Information of the disclosing party will remain the property of the disclosing party and will contain and state any and all confidential or proprietary notices or legends that appear on the original, unless otherwise authorized in writing by the disclosing party. Upon termination or expiration of this Agreement, or upon written request of the disclosing party, each receiving party will promptly destroy (to the extent reasonably practicable in case of electronic files) or return to the other all documents and other tangible materials representing the disclosing party’s Confidential Information and all copies thereof. Notwithstanding the forgoing the receiving party may retain one copy of all Confidential Information in its legal department solely for archival and compliance purposes and its external advisors, if any, may keep one copy of their Confidential Information in accordance with the laws and professional standards applicable to them.
6. No Other Rights. The parties recognize and agree that nothing contained in this Agreement will be construed as granting any property rights, by license or otherwise, to any Confidential Information of the disclosing party disclosed pursuant to this Agreement, or to any invention or any patent, copyright, trademark, or other intellectual property right that has issued or that may issue, based on such Confidential Information. Each receiving party will not make, have made, use or sell for any purpose any product or other item using, incorporating or derived from any Confidential Information of the disclosing party.
7. Standstill. Company hereby acknowledges that, unless otherwise agreed in writing by Spark, for a period of twelve (12) months from the date of this Agreement (the “Restricted Period”) none of Company, nor any of its Affiliates (as defined in Rule 12b-2 under the Securities Exchange Act of 1934, as amended) who are provided with Confidential Information or become aware of Company’s discussions with Spark, will: (a) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of Spark’s assets or businesses, or similar transactions involving Spark or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to Spark; (b) (i) acquire beneficial ownership of any voting securities (including in derivative form) of Spark (collectively, a transaction specified in (a)(i), (a)(ii) and (b)(i) involving a majority of Spark’s outstanding voting securities or consolidated assets, is referred to as a “Business Combination”), (ii) propose or seek, whether alone or in concert with others, any “solicitation” (as such term is used in the rules of the Securities and Exchange Commission) of proxies or consents to vote any securities (including in derivative form) of Spark, (iii) nominate any person as a director of Spark, or (iv) propose any matter to be voted upon by the stockholders of Spark; (c) directly or indirectly, form, join or in any way participate in a third party “group” (as such term is used in the rules of the Securities and Exchange Commission) (or discuss with any third party the potential formation of a group) with respect to any voting securities (including in derivative form) of Spark or a Business Combination involving Spark; (d) request Spark (or any of its officers, directors or representatives), directly or indirectly, to amend or waive any provision of this paragraph (including this sentence) in a way which would require Spark to publicly disclose the same; or (d) take any action that could require Spark to make a public announcement regarding a potential Business Combination; provided, however, that nothing in this paragraph shall prohibit Company from make a confidential proposal to Spark or Spark’s Chairman of the Board of Directors for a transaction involving a Business Combination at any time for a transaction involving a Business Combination. Notwithstanding the foregoing provisions of this paragraph to the contrary, the foregoing restrictions set forth in this paragraph shall immediately and automatically terminate and cease to apply with respect to Company and its Affiliates without any further action in the event that (A) Spark’s board of directors (or a committee thereof) approves, or Spark enters into a definitive agreement providing for, a Business Combination, (B) a third party commences, or announces an intention to commence, a tender or exchange offer, the consummation of which would constitute a Business Combination and (i) the board of directors (or a committee thereof) of Spark at any time recommends, or publicly discloses an intention to recommend, that Spark’s shareholders tender their shares into such tender or exchange offer (as it may have been amended), or (ii) the board of directors (or a committee thereof) of Spark does not, within ten business days from the date such offer is first published, sent or given to shareholders, recommend that Spark’s shareholders not tender their shares into such tender or exchange offer (as it may have been amended) or at any time thereafter changes its recommendation with respect to such tender or exchange offer (as it may have been amended) or takes any similar action that results in such board of directors no longer recommending that Spark’s shareholders not tender their shares into such tender or exchange offer, (C) any person or “group” (as such term is used under the Exchange Act) commences, or announces an intention to commence, any “solicitation” of “proxies” (as such terms are used under the Exchange Act) or consents with respect to the voting securities of Spark in which such person or group would, if successful, elect or acquire the ability to elect a majority of the members of the board of directors of Spark or result in a majority of the seats of the board of directors of Spark becoming vacant, or (D) with respect to any pending tender offer or exchange offer for shares of Spark, the consummation of which would constitute a Business Combination, Spark’s board of directors (or any committee thereof) no longer recommends that its shareholders tender their shares into such tender or exchange offer (as it may have been amended). The parties further acknowledge that Spark may enter into additional standstill agreements similar to the provision in this paragraph with third parties in connection with such third parties evaluating a possible transaction with Spark (“Other Standstill Agreement”), and the parties hereby agree that, to the extent that any such Other Standstill Agreement contains provisions that are more favorable to the third party than the provisions in this paragraph, this Agreement shall be deemed automatically amended to incorporate such more favorable terms as set forth in the Other Standstill Agreement. Following the expiration of the Restricted Period, no provision of this agreement shall restrict Company or its Affiliates, directly or indirectly, from taking any action described in this paragraph 7 (including using for the purpose of such action, but not otherwise disclosing any Confidential Information). For the avoidance of doubt, nothing in this paragraph 7 shall prevent the Company from entering into license, collaboration or other similar agreements in the ordinary course of business.
8. Passive Investments. The provisions of paragraph 7 shall not prohibit, Company or its Affiliates from owning and/or acquiring voting shares or other ownership interests in Spark provided that Company together with its Affiliates owns, in the aggregate, not more 5% of such voting securities. The provisions of paragraph 7 shall not prohibit passive investments by a pension or employee benefit plan or trust for Company’s or its Affiliates employees so long as such investments are directed by independent trustees, administrators or employees to whom no Confidential Information has been disclosed.
9. Term and Termination. This Agreement will terminate one (1) year after the Effective Date, or may be terminated by either party at any time upon thirty (30) days written notice to the other party. The receiving party’s obligations under this Agreement will survive termination or expiration of this Agreement for a period of five (5) years after the termination or expiration hereof and will be binding upon the receiving party’s heirs, successors and assigns after such termination or expiration; provided that the rights and obligations in Section 7 shall expire as set forth therein.
10. Notice. Any notice to be given hereunder by either party to the other will be in writing addressed to the address set forth in the opening paragraph above (unless either provides written notice of a different address) and will be deemed given: (a) upon delivery if sent by overnight courier; or (b) three (3) days after deposit in the mail if sent by pre-paid, certified mail, return receipt requested mail.
11. General. This Agreement constitutes the entire agreement between the parties with respect to the subject matter of this Agreement. This Agreement supersedes all previous agreements between the parties relating to the subject matter hereof. The headings to sections of this Agreement are inserted for convenience only and will not be deemed a part hereof or affect the construction or interpretation of any provision hereof. No provision of this Agreement will be deemed waived, amended or modified by either party, unless such waiver, amendment or modification is made in writing and signed by both parties. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware, without reference to conflict of laws principles. Any dispute under this Agreement may be brought in the state courts and the Federal courts located in the State of Delaware, and the parties hereby consent to the personal jurisdiction and venue of these courts. Each party acknowledges and agrees that money damages would not be a sufficient remedy for any breach (or threatened breach) of this Agreement by the receiving party or its Affiliates or representatives and that the disclosing party shall be entitled to equitable relief, including injunction and specific performance, as a remedy for any such breach (or threatened breach), without proof of damages, and each party further agrees to waive, and use its best efforts to cause its Affiliates and representatives to waive any requirement for the securing or posting of any bond in connection with any such remedy. Such remedies shall not be the exclusive remedies for a breach of this Agreement, but will be in addition to all other remedies available at law or in equity. If any provision of this Agreement is found by a proper authority to be unenforceable or invalid, such unenforceability or invalidity will not render this Agreement unenforceable or invalid as a whole, and such provision will be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or applicable court decisions. Neither party will assign or transfer any rights or obligations under this Agreement without the prior written consent of the other party, provided that a party may assign this Agreement to an Affiliate or successor without the consent of the other party in connection with a merger, reorganization, consolidation, change of control, sale of substantially all assets or similar transaction of the assigning party. Neither party will export, directly or indirectly, any technical data acquired from the other pursuant to this Agreement or any product utilizing any such data to any country for which the U.S. Government or any agency thereof at the time of export requires an export license or other governmental approval without first obtaining such license or approval. This Agreement may be executed in one (1) or more counterparts, each of which shall be an original and all of which together shall constitute one and the same document. Signatures delivered by facsimile, PDF or electronic mail shall be as effective as original signatures.
IN WITNESS WHEREOF, duly authorized representatives of the parties have executed this Mutual Non-Disclosure Agreement as of the Effective Date.
SPARK THERAPEUTICS, INC. ROCHE HOLDINGS INC.
By: /s/ Joseph W. LaBarge By: /s/ Bruce Resnick
Name: Joseph W. LaBarge Name: Bruce Resnick
Title: Chief Legal Officer Title: Vice President
| Not mentioned |
621_nda-16 | 621_nda-16_0 | Q: Receiving Party shall destroy or return some Confidential Information upon the termination of Agreement.
Text: Exhibit 99.(d)(2)
MUTUAL NON-DISCLOSURE AGREEMENT
THIS MUTUAL NON-DISCLOSURE AGREEMENT (this “Agreement”), entered into as of October 9, 2018 (the “Effective Date”), governs the disclosure of information by and between Spark Therapeutics, Inc., a Delaware corporation, having an address at 3737 Market Street, Suite 1300, Philadelphia, PA (“Spark”), and Roche Holdings Inc, a Delaware company having an address at 1 DNA Way, South San Francisco, CA 94080 (“Company”). For purposes of this Agreement, references to each of Spark and Company, and corresponding references to disclosing party and receiving party herein, shall include the respective subsidiaries and other entities controlled, directly or indirectly by Spark or Company, as the case may be; provided, however, with respect to Company, the foregoing provision shall exclude Chugai Pharmaceutical Co., Ltd, 1-1 Nihonbashi-Muromachi 2-chome, Chuo-ku, Tokyo, 103-8324 (“Chugai”) unless the Company opts for such inclusion of Chugai and their respective subsidiaries by giving written notice to the Company.
1. Purpose. This Agreement is made in order for each party to disclose to the other, during the term of this Agreement, such scientific, technical, business and financial information as the disclosing party may elect to disclose so that the receiving party may use the same solely for the purpose of evaluating the Confidential Information internally in connection with evaluating a possible transaction between the parties relating to one, more or all of Spark’s gene therapy product candidates and/or assets (the “Purpose”) under terms that will protect the confidential and proprietary nature of such information.
2. Confidential Information. As used herein, “Confidential Information” will mean any and all scientific, technical, business and financial information, including third party information, that is furnished or disclosed, in whatever form or medium (regardless of whether tangible, intangible, visual, or oral), to the receiving party, before or after the Effective Date. “Confidential Information” includes but is not limited to: (a) patent and patent applications; (b) manufacturing, including process and know-how; (c) clinical trial design or results; (d) vendors; (e) trade secrets; and (f) other proprietary information, ideas, gene sequences, cell lines, samples, chemical compounds, assays, biological materials, techniques, sketches, drawings, works of authorship, models, inventions, know-how, processes, apparatuses, equipment, and formulae related to the current, future, and proposed products and services of each of the parties, and including without limitation, their respective information concerning research, experimental work, development, design details and specifications, engineering, financial information, procurement requirements, purchasing, manufacturing, customer lists, investors, employees, business and contractual relationships, business forecasts, analyst reports, sales and merchandising, marketing plans and any additional non-public information the disclosing party provides.
3. Obligations. Each receiving party agrees: (a) to use the disclosing party’s Confidential Information solely for the Purpose stated above and for no other reason; (b) to protect the confidentiality of the disclosing party’s Confidential Information; (c) not to disclose any of the disclosing party’s Confidential Information to anyone, except those employees, consultants or representatives of the receiving party or its Affiliates who have a “need to know” the information for the Purpose and who have signed confidentiality agreements or are otherwise bound by confidentiality and non-use obligations at least as restrictive as those contained herein; and (d) to notify appropriately such employees, consultants and representatives of the receiving party or its Affiliates that the disclosure is made in confidence and under the applicable confidentiality obligations. The receiving party agrees to be responsible for any breaches of any of the provisions of this Agreement by any of its employees, consultants or representatives. Each receiving party agrees that in the event permission is granted by the disclosing party to copy Confidential Information, each such copy will contain and state the same confidential or proprietary notices or legends, if any, that appear on the original.
4. Exceptions. The obligations and restrictions imposed by this Agreement will not apply to any Confidential Information that the receiving party can establish by competent evidence acceptable under applicable law and as deemed appropriate by the competent court: (a) is already known to the receiving party prior to the disclosing party’s disclosure; (b) is or becomes publicly available through no fault of the receiving party; (c) is obtained by the receiving party from a third party; or (d) is independently developed by the receiving party without use of or reference to any Confidential Information. Notwithstanding the foregoing, (i) any Confidential Information shall not be deemed to be within the foregoing exceptions merely because such information is embraced by more general information in the public domain or in the possession of the receiving party, and (ii) any combination of features shall not be deemed to be within the foregoing exceptions merely because individual features are in the public domain or in the possession of the receiving party, but only if the combination itself and its principle of operation are in the public domain or in the possession of the receiving party. Notwithstanding anything contained in this Agreement, other than in the case of an External Demand (as defined below), the receiving party may disclose either the fact that discussions or negotiations are taking place concerning the Purpose or any of the terms, conditions or other facts with respect to the Purpose, including the status thereof or that Confidential Information has been made available to the receiving party (such information, “Transaction Information”) if but only if (i) such disclosure is required under applicable securities or antitrust laws or under applicable stock exchange rules as determined based on advice of legal counsel and (ii) such disclosure requirement does not arise from a breach of this Agreement. In the event the receiving party receives a request or is required by deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process or pursuant to a formal request from a regulatory examiner (any such requested or required disclosure, an “External Demand”) to disclose all or any part of the Confidential Information of the disclosing party or the Transaction Information, the receiving party shall (1) immediately notify the disclosing party of the existence, terms and circumstances surrounding such External Demand, (2) consult with the disclosing party on the advisability of taking legally available steps to resist or narrow such request or disclosure, and (3) assist the disclosing party, at the disclosing party’s expense, in seeking a protective order or other appropriate remedy to the extent available under the circumstances. In the event that such protective order or other remedy is not obtained or that the disclosing party waives compliance with the provisions hereof, (x) the receiving party may disclose only that portion of the Confidential Information or Transaction Information which the receiving party is advised by counsel is legally required to be disclosed and to only those persons to whom the receiving party is advised by counsel are legally required to receive such information, and the receiving party shall exercise commercially reasonable efforts to obtain assurance that confidential treatment will be accorded such Confidential Information or Transaction Information, and (y) the receiving party shall not be liable for such disclosure, unless such disclosure was caused by or resulted from a previous disclosure by the receiving party not permitted by this Agreement.
5. Handling of Information and Materials. Confidential Information will not be reproduced in any form except as required to accomplish the Purpose of this Agreement. Any reproduction of any Confidential Information of the disclosing party will remain the property of the disclosing party and will contain and state any and all confidential or proprietary notices or legends that appear on the original, unless otherwise authorized in writing by the disclosing party. Upon termination or expiration of this Agreement, or upon written request of the disclosing party, each receiving party will promptly destroy (to the extent reasonably practicable in case of electronic files) or return to the other all documents and other tangible materials representing the disclosing party’s Confidential Information and all copies thereof. Notwithstanding the forgoing the receiving party may retain one copy of all Confidential Information in its legal department solely for archival and compliance purposes and its external advisors, if any, may keep one copy of their Confidential Information in accordance with the laws and professional standards applicable to them.
6. No Other Rights. The parties recognize and agree that nothing contained in this Agreement will be construed as granting any property rights, by license or otherwise, to any Confidential Information of the disclosing party disclosed pursuant to this Agreement, or to any invention or any patent, copyright, trademark, or other intellectual property right that has issued or that may issue, based on such Confidential Information. Each receiving party will not make, have made, use or sell for any purpose any product or other item using, incorporating or derived from any Confidential Information of the disclosing party.
7. Standstill. Company hereby acknowledges that, unless otherwise agreed in writing by Spark, for a period of twelve (12) months from the date of this Agreement (the “Restricted Period”) none of Company, nor any of its Affiliates (as defined in Rule 12b-2 under the Securities Exchange Act of 1934, as amended) who are provided with Confidential Information or become aware of Company’s discussions with Spark, will: (a) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of Spark’s assets or businesses, or similar transactions involving Spark or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to Spark; (b) (i) acquire beneficial ownership of any voting securities (including in derivative form) of Spark (collectively, a transaction specified in (a)(i), (a)(ii) and (b)(i) involving a majority of Spark’s outstanding voting securities or consolidated assets, is referred to as a “Business Combination”), (ii) propose or seek, whether alone or in concert with others, any “solicitation” (as such term is used in the rules of the Securities and Exchange Commission) of proxies or consents to vote any securities (including in derivative form) of Spark, (iii) nominate any person as a director of Spark, or (iv) propose any matter to be voted upon by the stockholders of Spark; (c) directly or indirectly, form, join or in any way participate in a third party “group” (as such term is used in the rules of the Securities and Exchange Commission) (or discuss with any third party the potential formation of a group) with respect to any voting securities (including in derivative form) of Spark or a Business Combination involving Spark; (d) request Spark (or any of its officers, directors or representatives), directly or indirectly, to amend or waive any provision of this paragraph (including this sentence) in a way which would require Spark to publicly disclose the same; or (d) take any action that could require Spark to make a public announcement regarding a potential Business Combination; provided, however, that nothing in this paragraph shall prohibit Company from make a confidential proposal to Spark or Spark’s Chairman of the Board of Directors for a transaction involving a Business Combination at any time for a transaction involving a Business Combination. Notwithstanding the foregoing provisions of this paragraph to the contrary, the foregoing restrictions set forth in this paragraph shall immediately and automatically terminate and cease to apply with respect to Company and its Affiliates without any further action in the event that (A) Spark’s board of directors (or a committee thereof) approves, or Spark enters into a definitive agreement providing for, a Business Combination, (B) a third party commences, or announces an intention to commence, a tender or exchange offer, the consummation of which would constitute a Business Combination and (i) the board of directors (or a committee thereof) of Spark at any time recommends, or publicly discloses an intention to recommend, that Spark’s shareholders tender their shares into such tender or exchange offer (as it may have been amended), or (ii) the board of directors (or a committee thereof) of Spark does not, within ten business days from the date such offer is first published, sent or given to shareholders, recommend that Spark’s shareholders not tender their shares into such tender or exchange offer (as it may have been amended) or at any time thereafter changes its recommendation with respect to such tender or exchange offer (as it may have been amended) or takes any similar action that results in such board of directors no longer recommending that Spark’s shareholders not tender their shares into such tender or exchange offer, (C) any person or “group” (as such term is used under the Exchange Act) commences, or announces an intention to commence, any “solicitation” of “proxies” (as such terms are used under the Exchange Act) or consents with respect to the voting securities of Spark in which such person or group would, if successful, elect or acquire the ability to elect a majority of the members of the board of directors of Spark or result in a majority of the seats of the board of directors of Spark becoming vacant, or (D) with respect to any pending tender offer or exchange offer for shares of Spark, the consummation of which would constitute a Business Combination, Spark’s board of directors (or any committee thereof) no longer recommends that its shareholders tender their shares into such tender or exchange offer (as it may have been amended). The parties further acknowledge that Spark may enter into additional standstill agreements similar to the provision in this paragraph with third parties in connection with such third parties evaluating a possible transaction with Spark (“Other Standstill Agreement”), and the parties hereby agree that, to the extent that any such Other Standstill Agreement contains provisions that are more favorable to the third party than the provisions in this paragraph, this Agreement shall be deemed automatically amended to incorporate such more favorable terms as set forth in the Other Standstill Agreement. Following the expiration of the Restricted Period, no provision of this agreement shall restrict Company or its Affiliates, directly or indirectly, from taking any action described in this paragraph 7 (including using for the purpose of such action, but not otherwise disclosing any Confidential Information). For the avoidance of doubt, nothing in this paragraph 7 shall prevent the Company from entering into license, collaboration or other similar agreements in the ordinary course of business.
8. Passive Investments. The provisions of paragraph 7 shall not prohibit, Company or its Affiliates from owning and/or acquiring voting shares or other ownership interests in Spark provided that Company together with its Affiliates owns, in the aggregate, not more 5% of such voting securities. The provisions of paragraph 7 shall not prohibit passive investments by a pension or employee benefit plan or trust for Company’s or its Affiliates employees so long as such investments are directed by independent trustees, administrators or employees to whom no Confidential Information has been disclosed.
9. Term and Termination. This Agreement will terminate one (1) year after the Effective Date, or may be terminated by either party at any time upon thirty (30) days written notice to the other party. The receiving party’s obligations under this Agreement will survive termination or expiration of this Agreement for a period of five (5) years after the termination or expiration hereof and will be binding upon the receiving party’s heirs, successors and assigns after such termination or expiration; provided that the rights and obligations in Section 7 shall expire as set forth therein.
10. Notice. Any notice to be given hereunder by either party to the other will be in writing addressed to the address set forth in the opening paragraph above (unless either provides written notice of a different address) and will be deemed given: (a) upon delivery if sent by overnight courier; or (b) three (3) days after deposit in the mail if sent by pre-paid, certified mail, return receipt requested mail.
11. General. This Agreement constitutes the entire agreement between the parties with respect to the subject matter of this Agreement. This Agreement supersedes all previous agreements between the parties relating to the subject matter hereof. The headings to sections of this Agreement are inserted for convenience only and will not be deemed a part hereof or affect the construction or interpretation of any provision hereof. No provision of this Agreement will be deemed waived, amended or modified by either party, unless such waiver, amendment or modification is made in writing and signed by both parties. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware, without reference to conflict of laws principles. Any dispute under this Agreement may be brought in the state courts and the Federal courts located in the State of Delaware, and the parties hereby consent to the personal jurisdiction and venue of these courts. Each party acknowledges and agrees that money damages would not be a sufficient remedy for any breach (or threatened breach) of this Agreement by the receiving party or its Affiliates or representatives and that the disclosing party shall be entitled to equitable relief, including injunction and specific performance, as a remedy for any such breach (or threatened breach), without proof of damages, and each party further agrees to waive, and use its best efforts to cause its Affiliates and representatives to waive any requirement for the securing or posting of any bond in connection with any such remedy. Such remedies shall not be the exclusive remedies for a breach of this Agreement, but will be in addition to all other remedies available at law or in equity. If any provision of this Agreement is found by a proper authority to be unenforceable or invalid, such unenforceability or invalidity will not render this Agreement unenforceable or invalid as a whole, and such provision will be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or applicable court decisions. Neither party will assign or transfer any rights or obligations under this Agreement without the prior written consent of the other party, provided that a party may assign this Agreement to an Affiliate or successor without the consent of the other party in connection with a merger, reorganization, consolidation, change of control, sale of substantially all assets or similar transaction of the assigning party. Neither party will export, directly or indirectly, any technical data acquired from the other pursuant to this Agreement or any product utilizing any such data to any country for which the U.S. Government or any agency thereof at the time of export requires an export license or other governmental approval without first obtaining such license or approval. This Agreement may be executed in one (1) or more counterparts, each of which shall be an original and all of which together shall constitute one and the same document. Signatures delivered by facsimile, PDF or electronic mail shall be as effective as original signatures.
IN WITNESS WHEREOF, duly authorized representatives of the parties have executed this Mutual Non-Disclosure Agreement as of the Effective Date.
SPARK THERAPEUTICS, INC. ROCHE HOLDINGS INC.
By: /s/ Joseph W. LaBarge By: /s/ Bruce Resnick
Name: Joseph W. LaBarge Name: Bruce Resnick
Title: Chief Legal Officer Title: Vice President
| Entailment |
621_nda-15 | 621_nda-15_0 | Q: Agreement shall not grant Receiving Party any right to Confidential Information.
Text: Exhibit 99.(d)(2)
MUTUAL NON-DISCLOSURE AGREEMENT
THIS MUTUAL NON-DISCLOSURE AGREEMENT (this “Agreement”), entered into as of October 9, 2018 (the “Effective Date”), governs the disclosure of information by and between Spark Therapeutics, Inc., a Delaware corporation, having an address at 3737 Market Street, Suite 1300, Philadelphia, PA (“Spark”), and Roche Holdings Inc, a Delaware company having an address at 1 DNA Way, South San Francisco, CA 94080 (“Company”). For purposes of this Agreement, references to each of Spark and Company, and corresponding references to disclosing party and receiving party herein, shall include the respective subsidiaries and other entities controlled, directly or indirectly by Spark or Company, as the case may be; provided, however, with respect to Company, the foregoing provision shall exclude Chugai Pharmaceutical Co., Ltd, 1-1 Nihonbashi-Muromachi 2-chome, Chuo-ku, Tokyo, 103-8324 (“Chugai”) unless the Company opts for such inclusion of Chugai and their respective subsidiaries by giving written notice to the Company.
1. Purpose. This Agreement is made in order for each party to disclose to the other, during the term of this Agreement, such scientific, technical, business and financial information as the disclosing party may elect to disclose so that the receiving party may use the same solely for the purpose of evaluating the Confidential Information internally in connection with evaluating a possible transaction between the parties relating to one, more or all of Spark’s gene therapy product candidates and/or assets (the “Purpose”) under terms that will protect the confidential and proprietary nature of such information.
2. Confidential Information. As used herein, “Confidential Information” will mean any and all scientific, technical, business and financial information, including third party information, that is furnished or disclosed, in whatever form or medium (regardless of whether tangible, intangible, visual, or oral), to the receiving party, before or after the Effective Date. “Confidential Information” includes but is not limited to: (a) patent and patent applications; (b) manufacturing, including process and know-how; (c) clinical trial design or results; (d) vendors; (e) trade secrets; and (f) other proprietary information, ideas, gene sequences, cell lines, samples, chemical compounds, assays, biological materials, techniques, sketches, drawings, works of authorship, models, inventions, know-how, processes, apparatuses, equipment, and formulae related to the current, future, and proposed products and services of each of the parties, and including without limitation, their respective information concerning research, experimental work, development, design details and specifications, engineering, financial information, procurement requirements, purchasing, manufacturing, customer lists, investors, employees, business and contractual relationships, business forecasts, analyst reports, sales and merchandising, marketing plans and any additional non-public information the disclosing party provides.
3. Obligations. Each receiving party agrees: (a) to use the disclosing party’s Confidential Information solely for the Purpose stated above and for no other reason; (b) to protect the confidentiality of the disclosing party’s Confidential Information; (c) not to disclose any of the disclosing party’s Confidential Information to anyone, except those employees, consultants or representatives of the receiving party or its Affiliates who have a “need to know” the information for the Purpose and who have signed confidentiality agreements or are otherwise bound by confidentiality and non-use obligations at least as restrictive as those contained herein; and (d) to notify appropriately such employees, consultants and representatives of the receiving party or its Affiliates that the disclosure is made in confidence and under the applicable confidentiality obligations. The receiving party agrees to be responsible for any breaches of any of the provisions of this Agreement by any of its employees, consultants or representatives. Each receiving party agrees that in the event permission is granted by the disclosing party to copy Confidential Information, each such copy will contain and state the same confidential or proprietary notices or legends, if any, that appear on the original.
4. Exceptions. The obligations and restrictions imposed by this Agreement will not apply to any Confidential Information that the receiving party can establish by competent evidence acceptable under applicable law and as deemed appropriate by the competent court: (a) is already known to the receiving party prior to the disclosing party’s disclosure; (b) is or becomes publicly available through no fault of the receiving party; (c) is obtained by the receiving party from a third party; or (d) is independently developed by the receiving party without use of or reference to any Confidential Information. Notwithstanding the foregoing, (i) any Confidential Information shall not be deemed to be within the foregoing exceptions merely because such information is embraced by more general information in the public domain or in the possession of the receiving party, and (ii) any combination of features shall not be deemed to be within the foregoing exceptions merely because individual features are in the public domain or in the possession of the receiving party, but only if the combination itself and its principle of operation are in the public domain or in the possession of the receiving party. Notwithstanding anything contained in this Agreement, other than in the case of an External Demand (as defined below), the receiving party may disclose either the fact that discussions or negotiations are taking place concerning the Purpose or any of the terms, conditions or other facts with respect to the Purpose, including the status thereof or that Confidential Information has been made available to the receiving party (such information, “Transaction Information”) if but only if (i) such disclosure is required under applicable securities or antitrust laws or under applicable stock exchange rules as determined based on advice of legal counsel and (ii) such disclosure requirement does not arise from a breach of this Agreement. In the event the receiving party receives a request or is required by deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process or pursuant to a formal request from a regulatory examiner (any such requested or required disclosure, an “External Demand”) to disclose all or any part of the Confidential Information of the disclosing party or the Transaction Information, the receiving party shall (1) immediately notify the disclosing party of the existence, terms and circumstances surrounding such External Demand, (2) consult with the disclosing party on the advisability of taking legally available steps to resist or narrow such request or disclosure, and (3) assist the disclosing party, at the disclosing party’s expense, in seeking a protective order or other appropriate remedy to the extent available under the circumstances. In the event that such protective order or other remedy is not obtained or that the disclosing party waives compliance with the provisions hereof, (x) the receiving party may disclose only that portion of the Confidential Information or Transaction Information which the receiving party is advised by counsel is legally required to be disclosed and to only those persons to whom the receiving party is advised by counsel are legally required to receive such information, and the receiving party shall exercise commercially reasonable efforts to obtain assurance that confidential treatment will be accorded such Confidential Information or Transaction Information, and (y) the receiving party shall not be liable for such disclosure, unless such disclosure was caused by or resulted from a previous disclosure by the receiving party not permitted by this Agreement.
5. Handling of Information and Materials. Confidential Information will not be reproduced in any form except as required to accomplish the Purpose of this Agreement. Any reproduction of any Confidential Information of the disclosing party will remain the property of the disclosing party and will contain and state any and all confidential or proprietary notices or legends that appear on the original, unless otherwise authorized in writing by the disclosing party. Upon termination or expiration of this Agreement, or upon written request of the disclosing party, each receiving party will promptly destroy (to the extent reasonably practicable in case of electronic files) or return to the other all documents and other tangible materials representing the disclosing party’s Confidential Information and all copies thereof. Notwithstanding the forgoing the receiving party may retain one copy of all Confidential Information in its legal department solely for archival and compliance purposes and its external advisors, if any, may keep one copy of their Confidential Information in accordance with the laws and professional standards applicable to them.
6. No Other Rights. The parties recognize and agree that nothing contained in this Agreement will be construed as granting any property rights, by license or otherwise, to any Confidential Information of the disclosing party disclosed pursuant to this Agreement, or to any invention or any patent, copyright, trademark, or other intellectual property right that has issued or that may issue, based on such Confidential Information. Each receiving party will not make, have made, use or sell for any purpose any product or other item using, incorporating or derived from any Confidential Information of the disclosing party.
7. Standstill. Company hereby acknowledges that, unless otherwise agreed in writing by Spark, for a period of twelve (12) months from the date of this Agreement (the “Restricted Period”) none of Company, nor any of its Affiliates (as defined in Rule 12b-2 under the Securities Exchange Act of 1934, as amended) who are provided with Confidential Information or become aware of Company’s discussions with Spark, will: (a) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of Spark’s assets or businesses, or similar transactions involving Spark or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to Spark; (b) (i) acquire beneficial ownership of any voting securities (including in derivative form) of Spark (collectively, a transaction specified in (a)(i), (a)(ii) and (b)(i) involving a majority of Spark’s outstanding voting securities or consolidated assets, is referred to as a “Business Combination”), (ii) propose or seek, whether alone or in concert with others, any “solicitation” (as such term is used in the rules of the Securities and Exchange Commission) of proxies or consents to vote any securities (including in derivative form) of Spark, (iii) nominate any person as a director of Spark, or (iv) propose any matter to be voted upon by the stockholders of Spark; (c) directly or indirectly, form, join or in any way participate in a third party “group” (as such term is used in the rules of the Securities and Exchange Commission) (or discuss with any third party the potential formation of a group) with respect to any voting securities (including in derivative form) of Spark or a Business Combination involving Spark; (d) request Spark (or any of its officers, directors or representatives), directly or indirectly, to amend or waive any provision of this paragraph (including this sentence) in a way which would require Spark to publicly disclose the same; or (d) take any action that could require Spark to make a public announcement regarding a potential Business Combination; provided, however, that nothing in this paragraph shall prohibit Company from make a confidential proposal to Spark or Spark’s Chairman of the Board of Directors for a transaction involving a Business Combination at any time for a transaction involving a Business Combination. Notwithstanding the foregoing provisions of this paragraph to the contrary, the foregoing restrictions set forth in this paragraph shall immediately and automatically terminate and cease to apply with respect to Company and its Affiliates without any further action in the event that (A) Spark’s board of directors (or a committee thereof) approves, or Spark enters into a definitive agreement providing for, a Business Combination, (B) a third party commences, or announces an intention to commence, a tender or exchange offer, the consummation of which would constitute a Business Combination and (i) the board of directors (or a committee thereof) of Spark at any time recommends, or publicly discloses an intention to recommend, that Spark’s shareholders tender their shares into such tender or exchange offer (as it may have been amended), or (ii) the board of directors (or a committee thereof) of Spark does not, within ten business days from the date such offer is first published, sent or given to shareholders, recommend that Spark’s shareholders not tender their shares into such tender or exchange offer (as it may have been amended) or at any time thereafter changes its recommendation with respect to such tender or exchange offer (as it may have been amended) or takes any similar action that results in such board of directors no longer recommending that Spark’s shareholders not tender their shares into such tender or exchange offer, (C) any person or “group” (as such term is used under the Exchange Act) commences, or announces an intention to commence, any “solicitation” of “proxies” (as such terms are used under the Exchange Act) or consents with respect to the voting securities of Spark in which such person or group would, if successful, elect or acquire the ability to elect a majority of the members of the board of directors of Spark or result in a majority of the seats of the board of directors of Spark becoming vacant, or (D) with respect to any pending tender offer or exchange offer for shares of Spark, the consummation of which would constitute a Business Combination, Spark’s board of directors (or any committee thereof) no longer recommends that its shareholders tender their shares into such tender or exchange offer (as it may have been amended). The parties further acknowledge that Spark may enter into additional standstill agreements similar to the provision in this paragraph with third parties in connection with such third parties evaluating a possible transaction with Spark (“Other Standstill Agreement”), and the parties hereby agree that, to the extent that any such Other Standstill Agreement contains provisions that are more favorable to the third party than the provisions in this paragraph, this Agreement shall be deemed automatically amended to incorporate such more favorable terms as set forth in the Other Standstill Agreement. Following the expiration of the Restricted Period, no provision of this agreement shall restrict Company or its Affiliates, directly or indirectly, from taking any action described in this paragraph 7 (including using for the purpose of such action, but not otherwise disclosing any Confidential Information). For the avoidance of doubt, nothing in this paragraph 7 shall prevent the Company from entering into license, collaboration or other similar agreements in the ordinary course of business.
8. Passive Investments. The provisions of paragraph 7 shall not prohibit, Company or its Affiliates from owning and/or acquiring voting shares or other ownership interests in Spark provided that Company together with its Affiliates owns, in the aggregate, not more 5% of such voting securities. The provisions of paragraph 7 shall not prohibit passive investments by a pension or employee benefit plan or trust for Company’s or its Affiliates employees so long as such investments are directed by independent trustees, administrators or employees to whom no Confidential Information has been disclosed.
9. Term and Termination. This Agreement will terminate one (1) year after the Effective Date, or may be terminated by either party at any time upon thirty (30) days written notice to the other party. The receiving party’s obligations under this Agreement will survive termination or expiration of this Agreement for a period of five (5) years after the termination or expiration hereof and will be binding upon the receiving party’s heirs, successors and assigns after such termination or expiration; provided that the rights and obligations in Section 7 shall expire as set forth therein.
10. Notice. Any notice to be given hereunder by either party to the other will be in writing addressed to the address set forth in the opening paragraph above (unless either provides written notice of a different address) and will be deemed given: (a) upon delivery if sent by overnight courier; or (b) three (3) days after deposit in the mail if sent by pre-paid, certified mail, return receipt requested mail.
11. General. This Agreement constitutes the entire agreement between the parties with respect to the subject matter of this Agreement. This Agreement supersedes all previous agreements between the parties relating to the subject matter hereof. The headings to sections of this Agreement are inserted for convenience only and will not be deemed a part hereof or affect the construction or interpretation of any provision hereof. No provision of this Agreement will be deemed waived, amended or modified by either party, unless such waiver, amendment or modification is made in writing and signed by both parties. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware, without reference to conflict of laws principles. Any dispute under this Agreement may be brought in the state courts and the Federal courts located in the State of Delaware, and the parties hereby consent to the personal jurisdiction and venue of these courts. Each party acknowledges and agrees that money damages would not be a sufficient remedy for any breach (or threatened breach) of this Agreement by the receiving party or its Affiliates or representatives and that the disclosing party shall be entitled to equitable relief, including injunction and specific performance, as a remedy for any such breach (or threatened breach), without proof of damages, and each party further agrees to waive, and use its best efforts to cause its Affiliates and representatives to waive any requirement for the securing or posting of any bond in connection with any such remedy. Such remedies shall not be the exclusive remedies for a breach of this Agreement, but will be in addition to all other remedies available at law or in equity. If any provision of this Agreement is found by a proper authority to be unenforceable or invalid, such unenforceability or invalidity will not render this Agreement unenforceable or invalid as a whole, and such provision will be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or applicable court decisions. Neither party will assign or transfer any rights or obligations under this Agreement without the prior written consent of the other party, provided that a party may assign this Agreement to an Affiliate or successor without the consent of the other party in connection with a merger, reorganization, consolidation, change of control, sale of substantially all assets or similar transaction of the assigning party. Neither party will export, directly or indirectly, any technical data acquired from the other pursuant to this Agreement or any product utilizing any such data to any country for which the U.S. Government or any agency thereof at the time of export requires an export license or other governmental approval without first obtaining such license or approval. This Agreement may be executed in one (1) or more counterparts, each of which shall be an original and all of which together shall constitute one and the same document. Signatures delivered by facsimile, PDF or electronic mail shall be as effective as original signatures.
IN WITNESS WHEREOF, duly authorized representatives of the parties have executed this Mutual Non-Disclosure Agreement as of the Effective Date.
SPARK THERAPEUTICS, INC. ROCHE HOLDINGS INC.
By: /s/ Joseph W. LaBarge By: /s/ Bruce Resnick
Name: Joseph W. LaBarge Name: Bruce Resnick
Title: Chief Legal Officer Title: Vice President
| Entailment |
621_nda-10 | 621_nda-10_0 | Q: Receiving Party shall not disclose the fact that Agreement was agreed or negotiated.
Text: Exhibit 99.(d)(2)
MUTUAL NON-DISCLOSURE AGREEMENT
THIS MUTUAL NON-DISCLOSURE AGREEMENT (this “Agreement”), entered into as of October 9, 2018 (the “Effective Date”), governs the disclosure of information by and between Spark Therapeutics, Inc., a Delaware corporation, having an address at 3737 Market Street, Suite 1300, Philadelphia, PA (“Spark”), and Roche Holdings Inc, a Delaware company having an address at 1 DNA Way, South San Francisco, CA 94080 (“Company”). For purposes of this Agreement, references to each of Spark and Company, and corresponding references to disclosing party and receiving party herein, shall include the respective subsidiaries and other entities controlled, directly or indirectly by Spark or Company, as the case may be; provided, however, with respect to Company, the foregoing provision shall exclude Chugai Pharmaceutical Co., Ltd, 1-1 Nihonbashi-Muromachi 2-chome, Chuo-ku, Tokyo, 103-8324 (“Chugai”) unless the Company opts for such inclusion of Chugai and their respective subsidiaries by giving written notice to the Company.
1. Purpose. This Agreement is made in order for each party to disclose to the other, during the term of this Agreement, such scientific, technical, business and financial information as the disclosing party may elect to disclose so that the receiving party may use the same solely for the purpose of evaluating the Confidential Information internally in connection with evaluating a possible transaction between the parties relating to one, more or all of Spark’s gene therapy product candidates and/or assets (the “Purpose”) under terms that will protect the confidential and proprietary nature of such information.
2. Confidential Information. As used herein, “Confidential Information” will mean any and all scientific, technical, business and financial information, including third party information, that is furnished or disclosed, in whatever form or medium (regardless of whether tangible, intangible, visual, or oral), to the receiving party, before or after the Effective Date. “Confidential Information” includes but is not limited to: (a) patent and patent applications; (b) manufacturing, including process and know-how; (c) clinical trial design or results; (d) vendors; (e) trade secrets; and (f) other proprietary information, ideas, gene sequences, cell lines, samples, chemical compounds, assays, biological materials, techniques, sketches, drawings, works of authorship, models, inventions, know-how, processes, apparatuses, equipment, and formulae related to the current, future, and proposed products and services of each of the parties, and including without limitation, their respective information concerning research, experimental work, development, design details and specifications, engineering, financial information, procurement requirements, purchasing, manufacturing, customer lists, investors, employees, business and contractual relationships, business forecasts, analyst reports, sales and merchandising, marketing plans and any additional non-public information the disclosing party provides.
3. Obligations. Each receiving party agrees: (a) to use the disclosing party’s Confidential Information solely for the Purpose stated above and for no other reason; (b) to protect the confidentiality of the disclosing party’s Confidential Information; (c) not to disclose any of the disclosing party’s Confidential Information to anyone, except those employees, consultants or representatives of the receiving party or its Affiliates who have a “need to know” the information for the Purpose and who have signed confidentiality agreements or are otherwise bound by confidentiality and non-use obligations at least as restrictive as those contained herein; and (d) to notify appropriately such employees, consultants and representatives of the receiving party or its Affiliates that the disclosure is made in confidence and under the applicable confidentiality obligations. The receiving party agrees to be responsible for any breaches of any of the provisions of this Agreement by any of its employees, consultants or representatives. Each receiving party agrees that in the event permission is granted by the disclosing party to copy Confidential Information, each such copy will contain and state the same confidential or proprietary notices or legends, if any, that appear on the original.
4. Exceptions. The obligations and restrictions imposed by this Agreement will not apply to any Confidential Information that the receiving party can establish by competent evidence acceptable under applicable law and as deemed appropriate by the competent court: (a) is already known to the receiving party prior to the disclosing party’s disclosure; (b) is or becomes publicly available through no fault of the receiving party; (c) is obtained by the receiving party from a third party; or (d) is independently developed by the receiving party without use of or reference to any Confidential Information. Notwithstanding the foregoing, (i) any Confidential Information shall not be deemed to be within the foregoing exceptions merely because such information is embraced by more general information in the public domain or in the possession of the receiving party, and (ii) any combination of features shall not be deemed to be within the foregoing exceptions merely because individual features are in the public domain or in the possession of the receiving party, but only if the combination itself and its principle of operation are in the public domain or in the possession of the receiving party. Notwithstanding anything contained in this Agreement, other than in the case of an External Demand (as defined below), the receiving party may disclose either the fact that discussions or negotiations are taking place concerning the Purpose or any of the terms, conditions or other facts with respect to the Purpose, including the status thereof or that Confidential Information has been made available to the receiving party (such information, “Transaction Information”) if but only if (i) such disclosure is required under applicable securities or antitrust laws or under applicable stock exchange rules as determined based on advice of legal counsel and (ii) such disclosure requirement does not arise from a breach of this Agreement. In the event the receiving party receives a request or is required by deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process or pursuant to a formal request from a regulatory examiner (any such requested or required disclosure, an “External Demand”) to disclose all or any part of the Confidential Information of the disclosing party or the Transaction Information, the receiving party shall (1) immediately notify the disclosing party of the existence, terms and circumstances surrounding such External Demand, (2) consult with the disclosing party on the advisability of taking legally available steps to resist or narrow such request or disclosure, and (3) assist the disclosing party, at the disclosing party’s expense, in seeking a protective order or other appropriate remedy to the extent available under the circumstances. In the event that such protective order or other remedy is not obtained or that the disclosing party waives compliance with the provisions hereof, (x) the receiving party may disclose only that portion of the Confidential Information or Transaction Information which the receiving party is advised by counsel is legally required to be disclosed and to only those persons to whom the receiving party is advised by counsel are legally required to receive such information, and the receiving party shall exercise commercially reasonable efforts to obtain assurance that confidential treatment will be accorded such Confidential Information or Transaction Information, and (y) the receiving party shall not be liable for such disclosure, unless such disclosure was caused by or resulted from a previous disclosure by the receiving party not permitted by this Agreement.
5. Handling of Information and Materials. Confidential Information will not be reproduced in any form except as required to accomplish the Purpose of this Agreement. Any reproduction of any Confidential Information of the disclosing party will remain the property of the disclosing party and will contain and state any and all confidential or proprietary notices or legends that appear on the original, unless otherwise authorized in writing by the disclosing party. Upon termination or expiration of this Agreement, or upon written request of the disclosing party, each receiving party will promptly destroy (to the extent reasonably practicable in case of electronic files) or return to the other all documents and other tangible materials representing the disclosing party’s Confidential Information and all copies thereof. Notwithstanding the forgoing the receiving party may retain one copy of all Confidential Information in its legal department solely for archival and compliance purposes and its external advisors, if any, may keep one copy of their Confidential Information in accordance with the laws and professional standards applicable to them.
6. No Other Rights. The parties recognize and agree that nothing contained in this Agreement will be construed as granting any property rights, by license or otherwise, to any Confidential Information of the disclosing party disclosed pursuant to this Agreement, or to any invention or any patent, copyright, trademark, or other intellectual property right that has issued or that may issue, based on such Confidential Information. Each receiving party will not make, have made, use or sell for any purpose any product or other item using, incorporating or derived from any Confidential Information of the disclosing party.
7. Standstill. Company hereby acknowledges that, unless otherwise agreed in writing by Spark, for a period of twelve (12) months from the date of this Agreement (the “Restricted Period”) none of Company, nor any of its Affiliates (as defined in Rule 12b-2 under the Securities Exchange Act of 1934, as amended) who are provided with Confidential Information or become aware of Company’s discussions with Spark, will: (a) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of Spark’s assets or businesses, or similar transactions involving Spark or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to Spark; (b) (i) acquire beneficial ownership of any voting securities (including in derivative form) of Spark (collectively, a transaction specified in (a)(i), (a)(ii) and (b)(i) involving a majority of Spark’s outstanding voting securities or consolidated assets, is referred to as a “Business Combination”), (ii) propose or seek, whether alone or in concert with others, any “solicitation” (as such term is used in the rules of the Securities and Exchange Commission) of proxies or consents to vote any securities (including in derivative form) of Spark, (iii) nominate any person as a director of Spark, or (iv) propose any matter to be voted upon by the stockholders of Spark; (c) directly or indirectly, form, join or in any way participate in a third party “group” (as such term is used in the rules of the Securities and Exchange Commission) (or discuss with any third party the potential formation of a group) with respect to any voting securities (including in derivative form) of Spark or a Business Combination involving Spark; (d) request Spark (or any of its officers, directors or representatives), directly or indirectly, to amend or waive any provision of this paragraph (including this sentence) in a way which would require Spark to publicly disclose the same; or (d) take any action that could require Spark to make a public announcement regarding a potential Business Combination; provided, however, that nothing in this paragraph shall prohibit Company from make a confidential proposal to Spark or Spark’s Chairman of the Board of Directors for a transaction involving a Business Combination at any time for a transaction involving a Business Combination. Notwithstanding the foregoing provisions of this paragraph to the contrary, the foregoing restrictions set forth in this paragraph shall immediately and automatically terminate and cease to apply with respect to Company and its Affiliates without any further action in the event that (A) Spark’s board of directors (or a committee thereof) approves, or Spark enters into a definitive agreement providing for, a Business Combination, (B) a third party commences, or announces an intention to commence, a tender or exchange offer, the consummation of which would constitute a Business Combination and (i) the board of directors (or a committee thereof) of Spark at any time recommends, or publicly discloses an intention to recommend, that Spark’s shareholders tender their shares into such tender or exchange offer (as it may have been amended), or (ii) the board of directors (or a committee thereof) of Spark does not, within ten business days from the date such offer is first published, sent or given to shareholders, recommend that Spark’s shareholders not tender their shares into such tender or exchange offer (as it may have been amended) or at any time thereafter changes its recommendation with respect to such tender or exchange offer (as it may have been amended) or takes any similar action that results in such board of directors no longer recommending that Spark’s shareholders not tender their shares into such tender or exchange offer, (C) any person or “group” (as such term is used under the Exchange Act) commences, or announces an intention to commence, any “solicitation” of “proxies” (as such terms are used under the Exchange Act) or consents with respect to the voting securities of Spark in which such person or group would, if successful, elect or acquire the ability to elect a majority of the members of the board of directors of Spark or result in a majority of the seats of the board of directors of Spark becoming vacant, or (D) with respect to any pending tender offer or exchange offer for shares of Spark, the consummation of which would constitute a Business Combination, Spark’s board of directors (or any committee thereof) no longer recommends that its shareholders tender their shares into such tender or exchange offer (as it may have been amended). The parties further acknowledge that Spark may enter into additional standstill agreements similar to the provision in this paragraph with third parties in connection with such third parties evaluating a possible transaction with Spark (“Other Standstill Agreement”), and the parties hereby agree that, to the extent that any such Other Standstill Agreement contains provisions that are more favorable to the third party than the provisions in this paragraph, this Agreement shall be deemed automatically amended to incorporate such more favorable terms as set forth in the Other Standstill Agreement. Following the expiration of the Restricted Period, no provision of this agreement shall restrict Company or its Affiliates, directly or indirectly, from taking any action described in this paragraph 7 (including using for the purpose of such action, but not otherwise disclosing any Confidential Information). For the avoidance of doubt, nothing in this paragraph 7 shall prevent the Company from entering into license, collaboration or other similar agreements in the ordinary course of business.
8. Passive Investments. The provisions of paragraph 7 shall not prohibit, Company or its Affiliates from owning and/or acquiring voting shares or other ownership interests in Spark provided that Company together with its Affiliates owns, in the aggregate, not more 5% of such voting securities. The provisions of paragraph 7 shall not prohibit passive investments by a pension or employee benefit plan or trust for Company’s or its Affiliates employees so long as such investments are directed by independent trustees, administrators or employees to whom no Confidential Information has been disclosed.
9. Term and Termination. This Agreement will terminate one (1) year after the Effective Date, or may be terminated by either party at any time upon thirty (30) days written notice to the other party. The receiving party’s obligations under this Agreement will survive termination or expiration of this Agreement for a period of five (5) years after the termination or expiration hereof and will be binding upon the receiving party’s heirs, successors and assigns after such termination or expiration; provided that the rights and obligations in Section 7 shall expire as set forth therein.
10. Notice. Any notice to be given hereunder by either party to the other will be in writing addressed to the address set forth in the opening paragraph above (unless either provides written notice of a different address) and will be deemed given: (a) upon delivery if sent by overnight courier; or (b) three (3) days after deposit in the mail if sent by pre-paid, certified mail, return receipt requested mail.
11. General. This Agreement constitutes the entire agreement between the parties with respect to the subject matter of this Agreement. This Agreement supersedes all previous agreements between the parties relating to the subject matter hereof. The headings to sections of this Agreement are inserted for convenience only and will not be deemed a part hereof or affect the construction or interpretation of any provision hereof. No provision of this Agreement will be deemed waived, amended or modified by either party, unless such waiver, amendment or modification is made in writing and signed by both parties. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware, without reference to conflict of laws principles. Any dispute under this Agreement may be brought in the state courts and the Federal courts located in the State of Delaware, and the parties hereby consent to the personal jurisdiction and venue of these courts. Each party acknowledges and agrees that money damages would not be a sufficient remedy for any breach (or threatened breach) of this Agreement by the receiving party or its Affiliates or representatives and that the disclosing party shall be entitled to equitable relief, including injunction and specific performance, as a remedy for any such breach (or threatened breach), without proof of damages, and each party further agrees to waive, and use its best efforts to cause its Affiliates and representatives to waive any requirement for the securing or posting of any bond in connection with any such remedy. Such remedies shall not be the exclusive remedies for a breach of this Agreement, but will be in addition to all other remedies available at law or in equity. If any provision of this Agreement is found by a proper authority to be unenforceable or invalid, such unenforceability or invalidity will not render this Agreement unenforceable or invalid as a whole, and such provision will be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or applicable court decisions. Neither party will assign or transfer any rights or obligations under this Agreement without the prior written consent of the other party, provided that a party may assign this Agreement to an Affiliate or successor without the consent of the other party in connection with a merger, reorganization, consolidation, change of control, sale of substantially all assets or similar transaction of the assigning party. Neither party will export, directly or indirectly, any technical data acquired from the other pursuant to this Agreement or any product utilizing any such data to any country for which the U.S. Government or any agency thereof at the time of export requires an export license or other governmental approval without first obtaining such license or approval. This Agreement may be executed in one (1) or more counterparts, each of which shall be an original and all of which together shall constitute one and the same document. Signatures delivered by facsimile, PDF or electronic mail shall be as effective as original signatures.
IN WITNESS WHEREOF, duly authorized representatives of the parties have executed this Mutual Non-Disclosure Agreement as of the Effective Date.
SPARK THERAPEUTICS, INC. ROCHE HOLDINGS INC.
By: /s/ Joseph W. LaBarge By: /s/ Bruce Resnick
Name: Joseph W. LaBarge Name: Bruce Resnick
Title: Chief Legal Officer Title: Vice President
| Entailment |
621_nda-2 | 621_nda-2_0 | Q: Confidential Information shall only include technical information.
Text: Exhibit 99.(d)(2)
MUTUAL NON-DISCLOSURE AGREEMENT
THIS MUTUAL NON-DISCLOSURE AGREEMENT (this “Agreement”), entered into as of October 9, 2018 (the “Effective Date”), governs the disclosure of information by and between Spark Therapeutics, Inc., a Delaware corporation, having an address at 3737 Market Street, Suite 1300, Philadelphia, PA (“Spark”), and Roche Holdings Inc, a Delaware company having an address at 1 DNA Way, South San Francisco, CA 94080 (“Company”). For purposes of this Agreement, references to each of Spark and Company, and corresponding references to disclosing party and receiving party herein, shall include the respective subsidiaries and other entities controlled, directly or indirectly by Spark or Company, as the case may be; provided, however, with respect to Company, the foregoing provision shall exclude Chugai Pharmaceutical Co., Ltd, 1-1 Nihonbashi-Muromachi 2-chome, Chuo-ku, Tokyo, 103-8324 (“Chugai”) unless the Company opts for such inclusion of Chugai and their respective subsidiaries by giving written notice to the Company.
1. Purpose. This Agreement is made in order for each party to disclose to the other, during the term of this Agreement, such scientific, technical, business and financial information as the disclosing party may elect to disclose so that the receiving party may use the same solely for the purpose of evaluating the Confidential Information internally in connection with evaluating a possible transaction between the parties relating to one, more or all of Spark’s gene therapy product candidates and/or assets (the “Purpose”) under terms that will protect the confidential and proprietary nature of such information.
2. Confidential Information. As used herein, “Confidential Information” will mean any and all scientific, technical, business and financial information, including third party information, that is furnished or disclosed, in whatever form or medium (regardless of whether tangible, intangible, visual, or oral), to the receiving party, before or after the Effective Date. “Confidential Information” includes but is not limited to: (a) patent and patent applications; (b) manufacturing, including process and know-how; (c) clinical trial design or results; (d) vendors; (e) trade secrets; and (f) other proprietary information, ideas, gene sequences, cell lines, samples, chemical compounds, assays, biological materials, techniques, sketches, drawings, works of authorship, models, inventions, know-how, processes, apparatuses, equipment, and formulae related to the current, future, and proposed products and services of each of the parties, and including without limitation, their respective information concerning research, experimental work, development, design details and specifications, engineering, financial information, procurement requirements, purchasing, manufacturing, customer lists, investors, employees, business and contractual relationships, business forecasts, analyst reports, sales and merchandising, marketing plans and any additional non-public information the disclosing party provides.
3. Obligations. Each receiving party agrees: (a) to use the disclosing party’s Confidential Information solely for the Purpose stated above and for no other reason; (b) to protect the confidentiality of the disclosing party’s Confidential Information; (c) not to disclose any of the disclosing party’s Confidential Information to anyone, except those employees, consultants or representatives of the receiving party or its Affiliates who have a “need to know” the information for the Purpose and who have signed confidentiality agreements or are otherwise bound by confidentiality and non-use obligations at least as restrictive as those contained herein; and (d) to notify appropriately such employees, consultants and representatives of the receiving party or its Affiliates that the disclosure is made in confidence and under the applicable confidentiality obligations. The receiving party agrees to be responsible for any breaches of any of the provisions of this Agreement by any of its employees, consultants or representatives. Each receiving party agrees that in the event permission is granted by the disclosing party to copy Confidential Information, each such copy will contain and state the same confidential or proprietary notices or legends, if any, that appear on the original.
4. Exceptions. The obligations and restrictions imposed by this Agreement will not apply to any Confidential Information that the receiving party can establish by competent evidence acceptable under applicable law and as deemed appropriate by the competent court: (a) is already known to the receiving party prior to the disclosing party’s disclosure; (b) is or becomes publicly available through no fault of the receiving party; (c) is obtained by the receiving party from a third party; or (d) is independently developed by the receiving party without use of or reference to any Confidential Information. Notwithstanding the foregoing, (i) any Confidential Information shall not be deemed to be within the foregoing exceptions merely because such information is embraced by more general information in the public domain or in the possession of the receiving party, and (ii) any combination of features shall not be deemed to be within the foregoing exceptions merely because individual features are in the public domain or in the possession of the receiving party, but only if the combination itself and its principle of operation are in the public domain or in the possession of the receiving party. Notwithstanding anything contained in this Agreement, other than in the case of an External Demand (as defined below), the receiving party may disclose either the fact that discussions or negotiations are taking place concerning the Purpose or any of the terms, conditions or other facts with respect to the Purpose, including the status thereof or that Confidential Information has been made available to the receiving party (such information, “Transaction Information”) if but only if (i) such disclosure is required under applicable securities or antitrust laws or under applicable stock exchange rules as determined based on advice of legal counsel and (ii) such disclosure requirement does not arise from a breach of this Agreement. In the event the receiving party receives a request or is required by deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process or pursuant to a formal request from a regulatory examiner (any such requested or required disclosure, an “External Demand”) to disclose all or any part of the Confidential Information of the disclosing party or the Transaction Information, the receiving party shall (1) immediately notify the disclosing party of the existence, terms and circumstances surrounding such External Demand, (2) consult with the disclosing party on the advisability of taking legally available steps to resist or narrow such request or disclosure, and (3) assist the disclosing party, at the disclosing party’s expense, in seeking a protective order or other appropriate remedy to the extent available under the circumstances. In the event that such protective order or other remedy is not obtained or that the disclosing party waives compliance with the provisions hereof, (x) the receiving party may disclose only that portion of the Confidential Information or Transaction Information which the receiving party is advised by counsel is legally required to be disclosed and to only those persons to whom the receiving party is advised by counsel are legally required to receive such information, and the receiving party shall exercise commercially reasonable efforts to obtain assurance that confidential treatment will be accorded such Confidential Information or Transaction Information, and (y) the receiving party shall not be liable for such disclosure, unless such disclosure was caused by or resulted from a previous disclosure by the receiving party not permitted by this Agreement.
5. Handling of Information and Materials. Confidential Information will not be reproduced in any form except as required to accomplish the Purpose of this Agreement. Any reproduction of any Confidential Information of the disclosing party will remain the property of the disclosing party and will contain and state any and all confidential or proprietary notices or legends that appear on the original, unless otherwise authorized in writing by the disclosing party. Upon termination or expiration of this Agreement, or upon written request of the disclosing party, each receiving party will promptly destroy (to the extent reasonably practicable in case of electronic files) or return to the other all documents and other tangible materials representing the disclosing party’s Confidential Information and all copies thereof. Notwithstanding the forgoing the receiving party may retain one copy of all Confidential Information in its legal department solely for archival and compliance purposes and its external advisors, if any, may keep one copy of their Confidential Information in accordance with the laws and professional standards applicable to them.
6. No Other Rights. The parties recognize and agree that nothing contained in this Agreement will be construed as granting any property rights, by license or otherwise, to any Confidential Information of the disclosing party disclosed pursuant to this Agreement, or to any invention or any patent, copyright, trademark, or other intellectual property right that has issued or that may issue, based on such Confidential Information. Each receiving party will not make, have made, use or sell for any purpose any product or other item using, incorporating or derived from any Confidential Information of the disclosing party.
7. Standstill. Company hereby acknowledges that, unless otherwise agreed in writing by Spark, for a period of twelve (12) months from the date of this Agreement (the “Restricted Period”) none of Company, nor any of its Affiliates (as defined in Rule 12b-2 under the Securities Exchange Act of 1934, as amended) who are provided with Confidential Information or become aware of Company’s discussions with Spark, will: (a) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of Spark’s assets or businesses, or similar transactions involving Spark or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to Spark; (b) (i) acquire beneficial ownership of any voting securities (including in derivative form) of Spark (collectively, a transaction specified in (a)(i), (a)(ii) and (b)(i) involving a majority of Spark’s outstanding voting securities or consolidated assets, is referred to as a “Business Combination”), (ii) propose or seek, whether alone or in concert with others, any “solicitation” (as such term is used in the rules of the Securities and Exchange Commission) of proxies or consents to vote any securities (including in derivative form) of Spark, (iii) nominate any person as a director of Spark, or (iv) propose any matter to be voted upon by the stockholders of Spark; (c) directly or indirectly, form, join or in any way participate in a third party “group” (as such term is used in the rules of the Securities and Exchange Commission) (or discuss with any third party the potential formation of a group) with respect to any voting securities (including in derivative form) of Spark or a Business Combination involving Spark; (d) request Spark (or any of its officers, directors or representatives), directly or indirectly, to amend or waive any provision of this paragraph (including this sentence) in a way which would require Spark to publicly disclose the same; or (d) take any action that could require Spark to make a public announcement regarding a potential Business Combination; provided, however, that nothing in this paragraph shall prohibit Company from make a confidential proposal to Spark or Spark’s Chairman of the Board of Directors for a transaction involving a Business Combination at any time for a transaction involving a Business Combination. Notwithstanding the foregoing provisions of this paragraph to the contrary, the foregoing restrictions set forth in this paragraph shall immediately and automatically terminate and cease to apply with respect to Company and its Affiliates without any further action in the event that (A) Spark’s board of directors (or a committee thereof) approves, or Spark enters into a definitive agreement providing for, a Business Combination, (B) a third party commences, or announces an intention to commence, a tender or exchange offer, the consummation of which would constitute a Business Combination and (i) the board of directors (or a committee thereof) of Spark at any time recommends, or publicly discloses an intention to recommend, that Spark’s shareholders tender their shares into such tender or exchange offer (as it may have been amended), or (ii) the board of directors (or a committee thereof) of Spark does not, within ten business days from the date such offer is first published, sent or given to shareholders, recommend that Spark’s shareholders not tender their shares into such tender or exchange offer (as it may have been amended) or at any time thereafter changes its recommendation with respect to such tender or exchange offer (as it may have been amended) or takes any similar action that results in such board of directors no longer recommending that Spark’s shareholders not tender their shares into such tender or exchange offer, (C) any person or “group” (as such term is used under the Exchange Act) commences, or announces an intention to commence, any “solicitation” of “proxies” (as such terms are used under the Exchange Act) or consents with respect to the voting securities of Spark in which such person or group would, if successful, elect or acquire the ability to elect a majority of the members of the board of directors of Spark or result in a majority of the seats of the board of directors of Spark becoming vacant, or (D) with respect to any pending tender offer or exchange offer for shares of Spark, the consummation of which would constitute a Business Combination, Spark’s board of directors (or any committee thereof) no longer recommends that its shareholders tender their shares into such tender or exchange offer (as it may have been amended). The parties further acknowledge that Spark may enter into additional standstill agreements similar to the provision in this paragraph with third parties in connection with such third parties evaluating a possible transaction with Spark (“Other Standstill Agreement”), and the parties hereby agree that, to the extent that any such Other Standstill Agreement contains provisions that are more favorable to the third party than the provisions in this paragraph, this Agreement shall be deemed automatically amended to incorporate such more favorable terms as set forth in the Other Standstill Agreement. Following the expiration of the Restricted Period, no provision of this agreement shall restrict Company or its Affiliates, directly or indirectly, from taking any action described in this paragraph 7 (including using for the purpose of such action, but not otherwise disclosing any Confidential Information). For the avoidance of doubt, nothing in this paragraph 7 shall prevent the Company from entering into license, collaboration or other similar agreements in the ordinary course of business.
8. Passive Investments. The provisions of paragraph 7 shall not prohibit, Company or its Affiliates from owning and/or acquiring voting shares or other ownership interests in Spark provided that Company together with its Affiliates owns, in the aggregate, not more 5% of such voting securities. The provisions of paragraph 7 shall not prohibit passive investments by a pension or employee benefit plan or trust for Company’s or its Affiliates employees so long as such investments are directed by independent trustees, administrators or employees to whom no Confidential Information has been disclosed.
9. Term and Termination. This Agreement will terminate one (1) year after the Effective Date, or may be terminated by either party at any time upon thirty (30) days written notice to the other party. The receiving party’s obligations under this Agreement will survive termination or expiration of this Agreement for a period of five (5) years after the termination or expiration hereof and will be binding upon the receiving party’s heirs, successors and assigns after such termination or expiration; provided that the rights and obligations in Section 7 shall expire as set forth therein.
10. Notice. Any notice to be given hereunder by either party to the other will be in writing addressed to the address set forth in the opening paragraph above (unless either provides written notice of a different address) and will be deemed given: (a) upon delivery if sent by overnight courier; or (b) three (3) days after deposit in the mail if sent by pre-paid, certified mail, return receipt requested mail.
11. General. This Agreement constitutes the entire agreement between the parties with respect to the subject matter of this Agreement. This Agreement supersedes all previous agreements between the parties relating to the subject matter hereof. The headings to sections of this Agreement are inserted for convenience only and will not be deemed a part hereof or affect the construction or interpretation of any provision hereof. No provision of this Agreement will be deemed waived, amended or modified by either party, unless such waiver, amendment or modification is made in writing and signed by both parties. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware, without reference to conflict of laws principles. Any dispute under this Agreement may be brought in the state courts and the Federal courts located in the State of Delaware, and the parties hereby consent to the personal jurisdiction and venue of these courts. Each party acknowledges and agrees that money damages would not be a sufficient remedy for any breach (or threatened breach) of this Agreement by the receiving party or its Affiliates or representatives and that the disclosing party shall be entitled to equitable relief, including injunction and specific performance, as a remedy for any such breach (or threatened breach), without proof of damages, and each party further agrees to waive, and use its best efforts to cause its Affiliates and representatives to waive any requirement for the securing or posting of any bond in connection with any such remedy. Such remedies shall not be the exclusive remedies for a breach of this Agreement, but will be in addition to all other remedies available at law or in equity. If any provision of this Agreement is found by a proper authority to be unenforceable or invalid, such unenforceability or invalidity will not render this Agreement unenforceable or invalid as a whole, and such provision will be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or applicable court decisions. Neither party will assign or transfer any rights or obligations under this Agreement without the prior written consent of the other party, provided that a party may assign this Agreement to an Affiliate or successor without the consent of the other party in connection with a merger, reorganization, consolidation, change of control, sale of substantially all assets or similar transaction of the assigning party. Neither party will export, directly or indirectly, any technical data acquired from the other pursuant to this Agreement or any product utilizing any such data to any country for which the U.S. Government or any agency thereof at the time of export requires an export license or other governmental approval without first obtaining such license or approval. This Agreement may be executed in one (1) or more counterparts, each of which shall be an original and all of which together shall constitute one and the same document. Signatures delivered by facsimile, PDF or electronic mail shall be as effective as original signatures.
IN WITNESS WHEREOF, duly authorized representatives of the parties have executed this Mutual Non-Disclosure Agreement as of the Effective Date.
SPARK THERAPEUTICS, INC. ROCHE HOLDINGS INC.
By: /s/ Joseph W. LaBarge By: /s/ Bruce Resnick
Name: Joseph W. LaBarge Name: Bruce Resnick
Title: Chief Legal Officer Title: Vice President
| Contradiction |
621_nda-1 | 621_nda-1_0 | Q: All Confidential Information shall be expressly identified by the Disclosing Party.
Text: Exhibit 99.(d)(2)
MUTUAL NON-DISCLOSURE AGREEMENT
THIS MUTUAL NON-DISCLOSURE AGREEMENT (this “Agreement”), entered into as of October 9, 2018 (the “Effective Date”), governs the disclosure of information by and between Spark Therapeutics, Inc., a Delaware corporation, having an address at 3737 Market Street, Suite 1300, Philadelphia, PA (“Spark”), and Roche Holdings Inc, a Delaware company having an address at 1 DNA Way, South San Francisco, CA 94080 (“Company”). For purposes of this Agreement, references to each of Spark and Company, and corresponding references to disclosing party and receiving party herein, shall include the respective subsidiaries and other entities controlled, directly or indirectly by Spark or Company, as the case may be; provided, however, with respect to Company, the foregoing provision shall exclude Chugai Pharmaceutical Co., Ltd, 1-1 Nihonbashi-Muromachi 2-chome, Chuo-ku, Tokyo, 103-8324 (“Chugai”) unless the Company opts for such inclusion of Chugai and their respective subsidiaries by giving written notice to the Company.
1. Purpose. This Agreement is made in order for each party to disclose to the other, during the term of this Agreement, such scientific, technical, business and financial information as the disclosing party may elect to disclose so that the receiving party may use the same solely for the purpose of evaluating the Confidential Information internally in connection with evaluating a possible transaction between the parties relating to one, more or all of Spark’s gene therapy product candidates and/or assets (the “Purpose”) under terms that will protect the confidential and proprietary nature of such information.
2. Confidential Information. As used herein, “Confidential Information” will mean any and all scientific, technical, business and financial information, including third party information, that is furnished or disclosed, in whatever form or medium (regardless of whether tangible, intangible, visual, or oral), to the receiving party, before or after the Effective Date. “Confidential Information” includes but is not limited to: (a) patent and patent applications; (b) manufacturing, including process and know-how; (c) clinical trial design or results; (d) vendors; (e) trade secrets; and (f) other proprietary information, ideas, gene sequences, cell lines, samples, chemical compounds, assays, biological materials, techniques, sketches, drawings, works of authorship, models, inventions, know-how, processes, apparatuses, equipment, and formulae related to the current, future, and proposed products and services of each of the parties, and including without limitation, their respective information concerning research, experimental work, development, design details and specifications, engineering, financial information, procurement requirements, purchasing, manufacturing, customer lists, investors, employees, business and contractual relationships, business forecasts, analyst reports, sales and merchandising, marketing plans and any additional non-public information the disclosing party provides.
3. Obligations. Each receiving party agrees: (a) to use the disclosing party’s Confidential Information solely for the Purpose stated above and for no other reason; (b) to protect the confidentiality of the disclosing party’s Confidential Information; (c) not to disclose any of the disclosing party’s Confidential Information to anyone, except those employees, consultants or representatives of the receiving party or its Affiliates who have a “need to know” the information for the Purpose and who have signed confidentiality agreements or are otherwise bound by confidentiality and non-use obligations at least as restrictive as those contained herein; and (d) to notify appropriately such employees, consultants and representatives of the receiving party or its Affiliates that the disclosure is made in confidence and under the applicable confidentiality obligations. The receiving party agrees to be responsible for any breaches of any of the provisions of this Agreement by any of its employees, consultants or representatives. Each receiving party agrees that in the event permission is granted by the disclosing party to copy Confidential Information, each such copy will contain and state the same confidential or proprietary notices or legends, if any, that appear on the original.
4. Exceptions. The obligations and restrictions imposed by this Agreement will not apply to any Confidential Information that the receiving party can establish by competent evidence acceptable under applicable law and as deemed appropriate by the competent court: (a) is already known to the receiving party prior to the disclosing party’s disclosure; (b) is or becomes publicly available through no fault of the receiving party; (c) is obtained by the receiving party from a third party; or (d) is independently developed by the receiving party without use of or reference to any Confidential Information. Notwithstanding the foregoing, (i) any Confidential Information shall not be deemed to be within the foregoing exceptions merely because such information is embraced by more general information in the public domain or in the possession of the receiving party, and (ii) any combination of features shall not be deemed to be within the foregoing exceptions merely because individual features are in the public domain or in the possession of the receiving party, but only if the combination itself and its principle of operation are in the public domain or in the possession of the receiving party. Notwithstanding anything contained in this Agreement, other than in the case of an External Demand (as defined below), the receiving party may disclose either the fact that discussions or negotiations are taking place concerning the Purpose or any of the terms, conditions or other facts with respect to the Purpose, including the status thereof or that Confidential Information has been made available to the receiving party (such information, “Transaction Information”) if but only if (i) such disclosure is required under applicable securities or antitrust laws or under applicable stock exchange rules as determined based on advice of legal counsel and (ii) such disclosure requirement does not arise from a breach of this Agreement. In the event the receiving party receives a request or is required by deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process or pursuant to a formal request from a regulatory examiner (any such requested or required disclosure, an “External Demand”) to disclose all or any part of the Confidential Information of the disclosing party or the Transaction Information, the receiving party shall (1) immediately notify the disclosing party of the existence, terms and circumstances surrounding such External Demand, (2) consult with the disclosing party on the advisability of taking legally available steps to resist or narrow such request or disclosure, and (3) assist the disclosing party, at the disclosing party’s expense, in seeking a protective order or other appropriate remedy to the extent available under the circumstances. In the event that such protective order or other remedy is not obtained or that the disclosing party waives compliance with the provisions hereof, (x) the receiving party may disclose only that portion of the Confidential Information or Transaction Information which the receiving party is advised by counsel is legally required to be disclosed and to only those persons to whom the receiving party is advised by counsel are legally required to receive such information, and the receiving party shall exercise commercially reasonable efforts to obtain assurance that confidential treatment will be accorded such Confidential Information or Transaction Information, and (y) the receiving party shall not be liable for such disclosure, unless such disclosure was caused by or resulted from a previous disclosure by the receiving party not permitted by this Agreement.
5. Handling of Information and Materials. Confidential Information will not be reproduced in any form except as required to accomplish the Purpose of this Agreement. Any reproduction of any Confidential Information of the disclosing party will remain the property of the disclosing party and will contain and state any and all confidential or proprietary notices or legends that appear on the original, unless otherwise authorized in writing by the disclosing party. Upon termination or expiration of this Agreement, or upon written request of the disclosing party, each receiving party will promptly destroy (to the extent reasonably practicable in case of electronic files) or return to the other all documents and other tangible materials representing the disclosing party’s Confidential Information and all copies thereof. Notwithstanding the forgoing the receiving party may retain one copy of all Confidential Information in its legal department solely for archival and compliance purposes and its external advisors, if any, may keep one copy of their Confidential Information in accordance with the laws and professional standards applicable to them.
6. No Other Rights. The parties recognize and agree that nothing contained in this Agreement will be construed as granting any property rights, by license or otherwise, to any Confidential Information of the disclosing party disclosed pursuant to this Agreement, or to any invention or any patent, copyright, trademark, or other intellectual property right that has issued or that may issue, based on such Confidential Information. Each receiving party will not make, have made, use or sell for any purpose any product or other item using, incorporating or derived from any Confidential Information of the disclosing party.
7. Standstill. Company hereby acknowledges that, unless otherwise agreed in writing by Spark, for a period of twelve (12) months from the date of this Agreement (the “Restricted Period”) none of Company, nor any of its Affiliates (as defined in Rule 12b-2 under the Securities Exchange Act of 1934, as amended) who are provided with Confidential Information or become aware of Company’s discussions with Spark, will: (a) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of Spark’s assets or businesses, or similar transactions involving Spark or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to Spark; (b) (i) acquire beneficial ownership of any voting securities (including in derivative form) of Spark (collectively, a transaction specified in (a)(i), (a)(ii) and (b)(i) involving a majority of Spark’s outstanding voting securities or consolidated assets, is referred to as a “Business Combination”), (ii) propose or seek, whether alone or in concert with others, any “solicitation” (as such term is used in the rules of the Securities and Exchange Commission) of proxies or consents to vote any securities (including in derivative form) of Spark, (iii) nominate any person as a director of Spark, or (iv) propose any matter to be voted upon by the stockholders of Spark; (c) directly or indirectly, form, join or in any way participate in a third party “group” (as such term is used in the rules of the Securities and Exchange Commission) (or discuss with any third party the potential formation of a group) with respect to any voting securities (including in derivative form) of Spark or a Business Combination involving Spark; (d) request Spark (or any of its officers, directors or representatives), directly or indirectly, to amend or waive any provision of this paragraph (including this sentence) in a way which would require Spark to publicly disclose the same; or (d) take any action that could require Spark to make a public announcement regarding a potential Business Combination; provided, however, that nothing in this paragraph shall prohibit Company from make a confidential proposal to Spark or Spark’s Chairman of the Board of Directors for a transaction involving a Business Combination at any time for a transaction involving a Business Combination. Notwithstanding the foregoing provisions of this paragraph to the contrary, the foregoing restrictions set forth in this paragraph shall immediately and automatically terminate and cease to apply with respect to Company and its Affiliates without any further action in the event that (A) Spark’s board of directors (or a committee thereof) approves, or Spark enters into a definitive agreement providing for, a Business Combination, (B) a third party commences, or announces an intention to commence, a tender or exchange offer, the consummation of which would constitute a Business Combination and (i) the board of directors (or a committee thereof) of Spark at any time recommends, or publicly discloses an intention to recommend, that Spark’s shareholders tender their shares into such tender or exchange offer (as it may have been amended), or (ii) the board of directors (or a committee thereof) of Spark does not, within ten business days from the date such offer is first published, sent or given to shareholders, recommend that Spark’s shareholders not tender their shares into such tender or exchange offer (as it may have been amended) or at any time thereafter changes its recommendation with respect to such tender or exchange offer (as it may have been amended) or takes any similar action that results in such board of directors no longer recommending that Spark’s shareholders not tender their shares into such tender or exchange offer, (C) any person or “group” (as such term is used under the Exchange Act) commences, or announces an intention to commence, any “solicitation” of “proxies” (as such terms are used under the Exchange Act) or consents with respect to the voting securities of Spark in which such person or group would, if successful, elect or acquire the ability to elect a majority of the members of the board of directors of Spark or result in a majority of the seats of the board of directors of Spark becoming vacant, or (D) with respect to any pending tender offer or exchange offer for shares of Spark, the consummation of which would constitute a Business Combination, Spark’s board of directors (or any committee thereof) no longer recommends that its shareholders tender their shares into such tender or exchange offer (as it may have been amended). The parties further acknowledge that Spark may enter into additional standstill agreements similar to the provision in this paragraph with third parties in connection with such third parties evaluating a possible transaction with Spark (“Other Standstill Agreement”), and the parties hereby agree that, to the extent that any such Other Standstill Agreement contains provisions that are more favorable to the third party than the provisions in this paragraph, this Agreement shall be deemed automatically amended to incorporate such more favorable terms as set forth in the Other Standstill Agreement. Following the expiration of the Restricted Period, no provision of this agreement shall restrict Company or its Affiliates, directly or indirectly, from taking any action described in this paragraph 7 (including using for the purpose of such action, but not otherwise disclosing any Confidential Information). For the avoidance of doubt, nothing in this paragraph 7 shall prevent the Company from entering into license, collaboration or other similar agreements in the ordinary course of business.
8. Passive Investments. The provisions of paragraph 7 shall not prohibit, Company or its Affiliates from owning and/or acquiring voting shares or other ownership interests in Spark provided that Company together with its Affiliates owns, in the aggregate, not more 5% of such voting securities. The provisions of paragraph 7 shall not prohibit passive investments by a pension or employee benefit plan or trust for Company’s or its Affiliates employees so long as such investments are directed by independent trustees, administrators or employees to whom no Confidential Information has been disclosed.
9. Term and Termination. This Agreement will terminate one (1) year after the Effective Date, or may be terminated by either party at any time upon thirty (30) days written notice to the other party. The receiving party’s obligations under this Agreement will survive termination or expiration of this Agreement for a period of five (5) years after the termination or expiration hereof and will be binding upon the receiving party’s heirs, successors and assigns after such termination or expiration; provided that the rights and obligations in Section 7 shall expire as set forth therein.
10. Notice. Any notice to be given hereunder by either party to the other will be in writing addressed to the address set forth in the opening paragraph above (unless either provides written notice of a different address) and will be deemed given: (a) upon delivery if sent by overnight courier; or (b) three (3) days after deposit in the mail if sent by pre-paid, certified mail, return receipt requested mail.
11. General. This Agreement constitutes the entire agreement between the parties with respect to the subject matter of this Agreement. This Agreement supersedes all previous agreements between the parties relating to the subject matter hereof. The headings to sections of this Agreement are inserted for convenience only and will not be deemed a part hereof or affect the construction or interpretation of any provision hereof. No provision of this Agreement will be deemed waived, amended or modified by either party, unless such waiver, amendment or modification is made in writing and signed by both parties. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware, without reference to conflict of laws principles. Any dispute under this Agreement may be brought in the state courts and the Federal courts located in the State of Delaware, and the parties hereby consent to the personal jurisdiction and venue of these courts. Each party acknowledges and agrees that money damages would not be a sufficient remedy for any breach (or threatened breach) of this Agreement by the receiving party or its Affiliates or representatives and that the disclosing party shall be entitled to equitable relief, including injunction and specific performance, as a remedy for any such breach (or threatened breach), without proof of damages, and each party further agrees to waive, and use its best efforts to cause its Affiliates and representatives to waive any requirement for the securing or posting of any bond in connection with any such remedy. Such remedies shall not be the exclusive remedies for a breach of this Agreement, but will be in addition to all other remedies available at law or in equity. If any provision of this Agreement is found by a proper authority to be unenforceable or invalid, such unenforceability or invalidity will not render this Agreement unenforceable or invalid as a whole, and such provision will be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or applicable court decisions. Neither party will assign or transfer any rights or obligations under this Agreement without the prior written consent of the other party, provided that a party may assign this Agreement to an Affiliate or successor without the consent of the other party in connection with a merger, reorganization, consolidation, change of control, sale of substantially all assets or similar transaction of the assigning party. Neither party will export, directly or indirectly, any technical data acquired from the other pursuant to this Agreement or any product utilizing any such data to any country for which the U.S. Government or any agency thereof at the time of export requires an export license or other governmental approval without first obtaining such license or approval. This Agreement may be executed in one (1) or more counterparts, each of which shall be an original and all of which together shall constitute one and the same document. Signatures delivered by facsimile, PDF or electronic mail shall be as effective as original signatures.
IN WITNESS WHEREOF, duly authorized representatives of the parties have executed this Mutual Non-Disclosure Agreement as of the Effective Date.
SPARK THERAPEUTICS, INC. ROCHE HOLDINGS INC.
By: /s/ Joseph W. LaBarge By: /s/ Bruce Resnick
Name: Joseph W. LaBarge Name: Bruce Resnick
Title: Chief Legal Officer Title: Vice President
| Entailment |
621_nda-19 | 621_nda-19_0 | Q: Some obligations of Agreement may survive termination of Agreement.
Text: Exhibit 99.(d)(2)
MUTUAL NON-DISCLOSURE AGREEMENT
THIS MUTUAL NON-DISCLOSURE AGREEMENT (this “Agreement”), entered into as of October 9, 2018 (the “Effective Date”), governs the disclosure of information by and between Spark Therapeutics, Inc., a Delaware corporation, having an address at 3737 Market Street, Suite 1300, Philadelphia, PA (“Spark”), and Roche Holdings Inc, a Delaware company having an address at 1 DNA Way, South San Francisco, CA 94080 (“Company”). For purposes of this Agreement, references to each of Spark and Company, and corresponding references to disclosing party and receiving party herein, shall include the respective subsidiaries and other entities controlled, directly or indirectly by Spark or Company, as the case may be; provided, however, with respect to Company, the foregoing provision shall exclude Chugai Pharmaceutical Co., Ltd, 1-1 Nihonbashi-Muromachi 2-chome, Chuo-ku, Tokyo, 103-8324 (“Chugai”) unless the Company opts for such inclusion of Chugai and their respective subsidiaries by giving written notice to the Company.
1. Purpose. This Agreement is made in order for each party to disclose to the other, during the term of this Agreement, such scientific, technical, business and financial information as the disclosing party may elect to disclose so that the receiving party may use the same solely for the purpose of evaluating the Confidential Information internally in connection with evaluating a possible transaction between the parties relating to one, more or all of Spark’s gene therapy product candidates and/or assets (the “Purpose”) under terms that will protect the confidential and proprietary nature of such information.
2. Confidential Information. As used herein, “Confidential Information” will mean any and all scientific, technical, business and financial information, including third party information, that is furnished or disclosed, in whatever form or medium (regardless of whether tangible, intangible, visual, or oral), to the receiving party, before or after the Effective Date. “Confidential Information” includes but is not limited to: (a) patent and patent applications; (b) manufacturing, including process and know-how; (c) clinical trial design or results; (d) vendors; (e) trade secrets; and (f) other proprietary information, ideas, gene sequences, cell lines, samples, chemical compounds, assays, biological materials, techniques, sketches, drawings, works of authorship, models, inventions, know-how, processes, apparatuses, equipment, and formulae related to the current, future, and proposed products and services of each of the parties, and including without limitation, their respective information concerning research, experimental work, development, design details and specifications, engineering, financial information, procurement requirements, purchasing, manufacturing, customer lists, investors, employees, business and contractual relationships, business forecasts, analyst reports, sales and merchandising, marketing plans and any additional non-public information the disclosing party provides.
3. Obligations. Each receiving party agrees: (a) to use the disclosing party’s Confidential Information solely for the Purpose stated above and for no other reason; (b) to protect the confidentiality of the disclosing party’s Confidential Information; (c) not to disclose any of the disclosing party’s Confidential Information to anyone, except those employees, consultants or representatives of the receiving party or its Affiliates who have a “need to know” the information for the Purpose and who have signed confidentiality agreements or are otherwise bound by confidentiality and non-use obligations at least as restrictive as those contained herein; and (d) to notify appropriately such employees, consultants and representatives of the receiving party or its Affiliates that the disclosure is made in confidence and under the applicable confidentiality obligations. The receiving party agrees to be responsible for any breaches of any of the provisions of this Agreement by any of its employees, consultants or representatives. Each receiving party agrees that in the event permission is granted by the disclosing party to copy Confidential Information, each such copy will contain and state the same confidential or proprietary notices or legends, if any, that appear on the original.
4. Exceptions. The obligations and restrictions imposed by this Agreement will not apply to any Confidential Information that the receiving party can establish by competent evidence acceptable under applicable law and as deemed appropriate by the competent court: (a) is already known to the receiving party prior to the disclosing party’s disclosure; (b) is or becomes publicly available through no fault of the receiving party; (c) is obtained by the receiving party from a third party; or (d) is independently developed by the receiving party without use of or reference to any Confidential Information. Notwithstanding the foregoing, (i) any Confidential Information shall not be deemed to be within the foregoing exceptions merely because such information is embraced by more general information in the public domain or in the possession of the receiving party, and (ii) any combination of features shall not be deemed to be within the foregoing exceptions merely because individual features are in the public domain or in the possession of the receiving party, but only if the combination itself and its principle of operation are in the public domain or in the possession of the receiving party. Notwithstanding anything contained in this Agreement, other than in the case of an External Demand (as defined below), the receiving party may disclose either the fact that discussions or negotiations are taking place concerning the Purpose or any of the terms, conditions or other facts with respect to the Purpose, including the status thereof or that Confidential Information has been made available to the receiving party (such information, “Transaction Information”) if but only if (i) such disclosure is required under applicable securities or antitrust laws or under applicable stock exchange rules as determined based on advice of legal counsel and (ii) such disclosure requirement does not arise from a breach of this Agreement. In the event the receiving party receives a request or is required by deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process or pursuant to a formal request from a regulatory examiner (any such requested or required disclosure, an “External Demand”) to disclose all or any part of the Confidential Information of the disclosing party or the Transaction Information, the receiving party shall (1) immediately notify the disclosing party of the existence, terms and circumstances surrounding such External Demand, (2) consult with the disclosing party on the advisability of taking legally available steps to resist or narrow such request or disclosure, and (3) assist the disclosing party, at the disclosing party’s expense, in seeking a protective order or other appropriate remedy to the extent available under the circumstances. In the event that such protective order or other remedy is not obtained or that the disclosing party waives compliance with the provisions hereof, (x) the receiving party may disclose only that portion of the Confidential Information or Transaction Information which the receiving party is advised by counsel is legally required to be disclosed and to only those persons to whom the receiving party is advised by counsel are legally required to receive such information, and the receiving party shall exercise commercially reasonable efforts to obtain assurance that confidential treatment will be accorded such Confidential Information or Transaction Information, and (y) the receiving party shall not be liable for such disclosure, unless such disclosure was caused by or resulted from a previous disclosure by the receiving party not permitted by this Agreement.
5. Handling of Information and Materials. Confidential Information will not be reproduced in any form except as required to accomplish the Purpose of this Agreement. Any reproduction of any Confidential Information of the disclosing party will remain the property of the disclosing party and will contain and state any and all confidential or proprietary notices or legends that appear on the original, unless otherwise authorized in writing by the disclosing party. Upon termination or expiration of this Agreement, or upon written request of the disclosing party, each receiving party will promptly destroy (to the extent reasonably practicable in case of electronic files) or return to the other all documents and other tangible materials representing the disclosing party’s Confidential Information and all copies thereof. Notwithstanding the forgoing the receiving party may retain one copy of all Confidential Information in its legal department solely for archival and compliance purposes and its external advisors, if any, may keep one copy of their Confidential Information in accordance with the laws and professional standards applicable to them.
6. No Other Rights. The parties recognize and agree that nothing contained in this Agreement will be construed as granting any property rights, by license or otherwise, to any Confidential Information of the disclosing party disclosed pursuant to this Agreement, or to any invention or any patent, copyright, trademark, or other intellectual property right that has issued or that may issue, based on such Confidential Information. Each receiving party will not make, have made, use or sell for any purpose any product or other item using, incorporating or derived from any Confidential Information of the disclosing party.
7. Standstill. Company hereby acknowledges that, unless otherwise agreed in writing by Spark, for a period of twelve (12) months from the date of this Agreement (the “Restricted Period”) none of Company, nor any of its Affiliates (as defined in Rule 12b-2 under the Securities Exchange Act of 1934, as amended) who are provided with Confidential Information or become aware of Company’s discussions with Spark, will: (a) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of Spark’s assets or businesses, or similar transactions involving Spark or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to Spark; (b) (i) acquire beneficial ownership of any voting securities (including in derivative form) of Spark (collectively, a transaction specified in (a)(i), (a)(ii) and (b)(i) involving a majority of Spark’s outstanding voting securities or consolidated assets, is referred to as a “Business Combination”), (ii) propose or seek, whether alone or in concert with others, any “solicitation” (as such term is used in the rules of the Securities and Exchange Commission) of proxies or consents to vote any securities (including in derivative form) of Spark, (iii) nominate any person as a director of Spark, or (iv) propose any matter to be voted upon by the stockholders of Spark; (c) directly or indirectly, form, join or in any way participate in a third party “group” (as such term is used in the rules of the Securities and Exchange Commission) (or discuss with any third party the potential formation of a group) with respect to any voting securities (including in derivative form) of Spark or a Business Combination involving Spark; (d) request Spark (or any of its officers, directors or representatives), directly or indirectly, to amend or waive any provision of this paragraph (including this sentence) in a way which would require Spark to publicly disclose the same; or (d) take any action that could require Spark to make a public announcement regarding a potential Business Combination; provided, however, that nothing in this paragraph shall prohibit Company from make a confidential proposal to Spark or Spark’s Chairman of the Board of Directors for a transaction involving a Business Combination at any time for a transaction involving a Business Combination. Notwithstanding the foregoing provisions of this paragraph to the contrary, the foregoing restrictions set forth in this paragraph shall immediately and automatically terminate and cease to apply with respect to Company and its Affiliates without any further action in the event that (A) Spark’s board of directors (or a committee thereof) approves, or Spark enters into a definitive agreement providing for, a Business Combination, (B) a third party commences, or announces an intention to commence, a tender or exchange offer, the consummation of which would constitute a Business Combination and (i) the board of directors (or a committee thereof) of Spark at any time recommends, or publicly discloses an intention to recommend, that Spark’s shareholders tender their shares into such tender or exchange offer (as it may have been amended), or (ii) the board of directors (or a committee thereof) of Spark does not, within ten business days from the date such offer is first published, sent or given to shareholders, recommend that Spark’s shareholders not tender their shares into such tender or exchange offer (as it may have been amended) or at any time thereafter changes its recommendation with respect to such tender or exchange offer (as it may have been amended) or takes any similar action that results in such board of directors no longer recommending that Spark’s shareholders not tender their shares into such tender or exchange offer, (C) any person or “group” (as such term is used under the Exchange Act) commences, or announces an intention to commence, any “solicitation” of “proxies” (as such terms are used under the Exchange Act) or consents with respect to the voting securities of Spark in which such person or group would, if successful, elect or acquire the ability to elect a majority of the members of the board of directors of Spark or result in a majority of the seats of the board of directors of Spark becoming vacant, or (D) with respect to any pending tender offer or exchange offer for shares of Spark, the consummation of which would constitute a Business Combination, Spark’s board of directors (or any committee thereof) no longer recommends that its shareholders tender their shares into such tender or exchange offer (as it may have been amended). The parties further acknowledge that Spark may enter into additional standstill agreements similar to the provision in this paragraph with third parties in connection with such third parties evaluating a possible transaction with Spark (“Other Standstill Agreement”), and the parties hereby agree that, to the extent that any such Other Standstill Agreement contains provisions that are more favorable to the third party than the provisions in this paragraph, this Agreement shall be deemed automatically amended to incorporate such more favorable terms as set forth in the Other Standstill Agreement. Following the expiration of the Restricted Period, no provision of this agreement shall restrict Company or its Affiliates, directly or indirectly, from taking any action described in this paragraph 7 (including using for the purpose of such action, but not otherwise disclosing any Confidential Information). For the avoidance of doubt, nothing in this paragraph 7 shall prevent the Company from entering into license, collaboration or other similar agreements in the ordinary course of business.
8. Passive Investments. The provisions of paragraph 7 shall not prohibit, Company or its Affiliates from owning and/or acquiring voting shares or other ownership interests in Spark provided that Company together with its Affiliates owns, in the aggregate, not more 5% of such voting securities. The provisions of paragraph 7 shall not prohibit passive investments by a pension or employee benefit plan or trust for Company’s or its Affiliates employees so long as such investments are directed by independent trustees, administrators or employees to whom no Confidential Information has been disclosed.
9. Term and Termination. This Agreement will terminate one (1) year after the Effective Date, or may be terminated by either party at any time upon thirty (30) days written notice to the other party. The receiving party’s obligations under this Agreement will survive termination or expiration of this Agreement for a period of five (5) years after the termination or expiration hereof and will be binding upon the receiving party’s heirs, successors and assigns after such termination or expiration; provided that the rights and obligations in Section 7 shall expire as set forth therein.
10. Notice. Any notice to be given hereunder by either party to the other will be in writing addressed to the address set forth in the opening paragraph above (unless either provides written notice of a different address) and will be deemed given: (a) upon delivery if sent by overnight courier; or (b) three (3) days after deposit in the mail if sent by pre-paid, certified mail, return receipt requested mail.
11. General. This Agreement constitutes the entire agreement between the parties with respect to the subject matter of this Agreement. This Agreement supersedes all previous agreements between the parties relating to the subject matter hereof. The headings to sections of this Agreement are inserted for convenience only and will not be deemed a part hereof or affect the construction or interpretation of any provision hereof. No provision of this Agreement will be deemed waived, amended or modified by either party, unless such waiver, amendment or modification is made in writing and signed by both parties. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware, without reference to conflict of laws principles. Any dispute under this Agreement may be brought in the state courts and the Federal courts located in the State of Delaware, and the parties hereby consent to the personal jurisdiction and venue of these courts. Each party acknowledges and agrees that money damages would not be a sufficient remedy for any breach (or threatened breach) of this Agreement by the receiving party or its Affiliates or representatives and that the disclosing party shall be entitled to equitable relief, including injunction and specific performance, as a remedy for any such breach (or threatened breach), without proof of damages, and each party further agrees to waive, and use its best efforts to cause its Affiliates and representatives to waive any requirement for the securing or posting of any bond in connection with any such remedy. Such remedies shall not be the exclusive remedies for a breach of this Agreement, but will be in addition to all other remedies available at law or in equity. If any provision of this Agreement is found by a proper authority to be unenforceable or invalid, such unenforceability or invalidity will not render this Agreement unenforceable or invalid as a whole, and such provision will be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or applicable court decisions. Neither party will assign or transfer any rights or obligations under this Agreement without the prior written consent of the other party, provided that a party may assign this Agreement to an Affiliate or successor without the consent of the other party in connection with a merger, reorganization, consolidation, change of control, sale of substantially all assets or similar transaction of the assigning party. Neither party will export, directly or indirectly, any technical data acquired from the other pursuant to this Agreement or any product utilizing any such data to any country for which the U.S. Government or any agency thereof at the time of export requires an export license or other governmental approval without first obtaining such license or approval. This Agreement may be executed in one (1) or more counterparts, each of which shall be an original and all of which together shall constitute one and the same document. Signatures delivered by facsimile, PDF or electronic mail shall be as effective as original signatures.
IN WITNESS WHEREOF, duly authorized representatives of the parties have executed this Mutual Non-Disclosure Agreement as of the Effective Date.
SPARK THERAPEUTICS, INC. ROCHE HOLDINGS INC.
By: /s/ Joseph W. LaBarge By: /s/ Bruce Resnick
Name: Joseph W. LaBarge Name: Bruce Resnick
Title: Chief Legal Officer Title: Vice President
| Entailment |
621_nda-12 | 621_nda-12_0 | Q: Receiving Party may independently develop information similar to Confidential Information.
Text: Exhibit 99.(d)(2)
MUTUAL NON-DISCLOSURE AGREEMENT
THIS MUTUAL NON-DISCLOSURE AGREEMENT (this “Agreement”), entered into as of October 9, 2018 (the “Effective Date”), governs the disclosure of information by and between Spark Therapeutics, Inc., a Delaware corporation, having an address at 3737 Market Street, Suite 1300, Philadelphia, PA (“Spark”), and Roche Holdings Inc, a Delaware company having an address at 1 DNA Way, South San Francisco, CA 94080 (“Company”). For purposes of this Agreement, references to each of Spark and Company, and corresponding references to disclosing party and receiving party herein, shall include the respective subsidiaries and other entities controlled, directly or indirectly by Spark or Company, as the case may be; provided, however, with respect to Company, the foregoing provision shall exclude Chugai Pharmaceutical Co., Ltd, 1-1 Nihonbashi-Muromachi 2-chome, Chuo-ku, Tokyo, 103-8324 (“Chugai”) unless the Company opts for such inclusion of Chugai and their respective subsidiaries by giving written notice to the Company.
1. Purpose. This Agreement is made in order for each party to disclose to the other, during the term of this Agreement, such scientific, technical, business and financial information as the disclosing party may elect to disclose so that the receiving party may use the same solely for the purpose of evaluating the Confidential Information internally in connection with evaluating a possible transaction between the parties relating to one, more or all of Spark’s gene therapy product candidates and/or assets (the “Purpose”) under terms that will protect the confidential and proprietary nature of such information.
2. Confidential Information. As used herein, “Confidential Information” will mean any and all scientific, technical, business and financial information, including third party information, that is furnished or disclosed, in whatever form or medium (regardless of whether tangible, intangible, visual, or oral), to the receiving party, before or after the Effective Date. “Confidential Information” includes but is not limited to: (a) patent and patent applications; (b) manufacturing, including process and know-how; (c) clinical trial design or results; (d) vendors; (e) trade secrets; and (f) other proprietary information, ideas, gene sequences, cell lines, samples, chemical compounds, assays, biological materials, techniques, sketches, drawings, works of authorship, models, inventions, know-how, processes, apparatuses, equipment, and formulae related to the current, future, and proposed products and services of each of the parties, and including without limitation, their respective information concerning research, experimental work, development, design details and specifications, engineering, financial information, procurement requirements, purchasing, manufacturing, customer lists, investors, employees, business and contractual relationships, business forecasts, analyst reports, sales and merchandising, marketing plans and any additional non-public information the disclosing party provides.
3. Obligations. Each receiving party agrees: (a) to use the disclosing party’s Confidential Information solely for the Purpose stated above and for no other reason; (b) to protect the confidentiality of the disclosing party’s Confidential Information; (c) not to disclose any of the disclosing party’s Confidential Information to anyone, except those employees, consultants or representatives of the receiving party or its Affiliates who have a “need to know” the information for the Purpose and who have signed confidentiality agreements or are otherwise bound by confidentiality and non-use obligations at least as restrictive as those contained herein; and (d) to notify appropriately such employees, consultants and representatives of the receiving party or its Affiliates that the disclosure is made in confidence and under the applicable confidentiality obligations. The receiving party agrees to be responsible for any breaches of any of the provisions of this Agreement by any of its employees, consultants or representatives. Each receiving party agrees that in the event permission is granted by the disclosing party to copy Confidential Information, each such copy will contain and state the same confidential or proprietary notices or legends, if any, that appear on the original.
4. Exceptions. The obligations and restrictions imposed by this Agreement will not apply to any Confidential Information that the receiving party can establish by competent evidence acceptable under applicable law and as deemed appropriate by the competent court: (a) is already known to the receiving party prior to the disclosing party’s disclosure; (b) is or becomes publicly available through no fault of the receiving party; (c) is obtained by the receiving party from a third party; or (d) is independently developed by the receiving party without use of or reference to any Confidential Information. Notwithstanding the foregoing, (i) any Confidential Information shall not be deemed to be within the foregoing exceptions merely because such information is embraced by more general information in the public domain or in the possession of the receiving party, and (ii) any combination of features shall not be deemed to be within the foregoing exceptions merely because individual features are in the public domain or in the possession of the receiving party, but only if the combination itself and its principle of operation are in the public domain or in the possession of the receiving party. Notwithstanding anything contained in this Agreement, other than in the case of an External Demand (as defined below), the receiving party may disclose either the fact that discussions or negotiations are taking place concerning the Purpose or any of the terms, conditions or other facts with respect to the Purpose, including the status thereof or that Confidential Information has been made available to the receiving party (such information, “Transaction Information”) if but only if (i) such disclosure is required under applicable securities or antitrust laws or under applicable stock exchange rules as determined based on advice of legal counsel and (ii) such disclosure requirement does not arise from a breach of this Agreement. In the event the receiving party receives a request or is required by deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process or pursuant to a formal request from a regulatory examiner (any such requested or required disclosure, an “External Demand”) to disclose all or any part of the Confidential Information of the disclosing party or the Transaction Information, the receiving party shall (1) immediately notify the disclosing party of the existence, terms and circumstances surrounding such External Demand, (2) consult with the disclosing party on the advisability of taking legally available steps to resist or narrow such request or disclosure, and (3) assist the disclosing party, at the disclosing party’s expense, in seeking a protective order or other appropriate remedy to the extent available under the circumstances. In the event that such protective order or other remedy is not obtained or that the disclosing party waives compliance with the provisions hereof, (x) the receiving party may disclose only that portion of the Confidential Information or Transaction Information which the receiving party is advised by counsel is legally required to be disclosed and to only those persons to whom the receiving party is advised by counsel are legally required to receive such information, and the receiving party shall exercise commercially reasonable efforts to obtain assurance that confidential treatment will be accorded such Confidential Information or Transaction Information, and (y) the receiving party shall not be liable for such disclosure, unless such disclosure was caused by or resulted from a previous disclosure by the receiving party not permitted by this Agreement.
5. Handling of Information and Materials. Confidential Information will not be reproduced in any form except as required to accomplish the Purpose of this Agreement. Any reproduction of any Confidential Information of the disclosing party will remain the property of the disclosing party and will contain and state any and all confidential or proprietary notices or legends that appear on the original, unless otherwise authorized in writing by the disclosing party. Upon termination or expiration of this Agreement, or upon written request of the disclosing party, each receiving party will promptly destroy (to the extent reasonably practicable in case of electronic files) or return to the other all documents and other tangible materials representing the disclosing party’s Confidential Information and all copies thereof. Notwithstanding the forgoing the receiving party may retain one copy of all Confidential Information in its legal department solely for archival and compliance purposes and its external advisors, if any, may keep one copy of their Confidential Information in accordance with the laws and professional standards applicable to them.
6. No Other Rights. The parties recognize and agree that nothing contained in this Agreement will be construed as granting any property rights, by license or otherwise, to any Confidential Information of the disclosing party disclosed pursuant to this Agreement, or to any invention or any patent, copyright, trademark, or other intellectual property right that has issued or that may issue, based on such Confidential Information. Each receiving party will not make, have made, use or sell for any purpose any product or other item using, incorporating or derived from any Confidential Information of the disclosing party.
7. Standstill. Company hereby acknowledges that, unless otherwise agreed in writing by Spark, for a period of twelve (12) months from the date of this Agreement (the “Restricted Period”) none of Company, nor any of its Affiliates (as defined in Rule 12b-2 under the Securities Exchange Act of 1934, as amended) who are provided with Confidential Information or become aware of Company’s discussions with Spark, will: (a) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of Spark’s assets or businesses, or similar transactions involving Spark or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to Spark; (b) (i) acquire beneficial ownership of any voting securities (including in derivative form) of Spark (collectively, a transaction specified in (a)(i), (a)(ii) and (b)(i) involving a majority of Spark’s outstanding voting securities or consolidated assets, is referred to as a “Business Combination”), (ii) propose or seek, whether alone or in concert with others, any “solicitation” (as such term is used in the rules of the Securities and Exchange Commission) of proxies or consents to vote any securities (including in derivative form) of Spark, (iii) nominate any person as a director of Spark, or (iv) propose any matter to be voted upon by the stockholders of Spark; (c) directly or indirectly, form, join or in any way participate in a third party “group” (as such term is used in the rules of the Securities and Exchange Commission) (or discuss with any third party the potential formation of a group) with respect to any voting securities (including in derivative form) of Spark or a Business Combination involving Spark; (d) request Spark (or any of its officers, directors or representatives), directly or indirectly, to amend or waive any provision of this paragraph (including this sentence) in a way which would require Spark to publicly disclose the same; or (d) take any action that could require Spark to make a public announcement regarding a potential Business Combination; provided, however, that nothing in this paragraph shall prohibit Company from make a confidential proposal to Spark or Spark’s Chairman of the Board of Directors for a transaction involving a Business Combination at any time for a transaction involving a Business Combination. Notwithstanding the foregoing provisions of this paragraph to the contrary, the foregoing restrictions set forth in this paragraph shall immediately and automatically terminate and cease to apply with respect to Company and its Affiliates without any further action in the event that (A) Spark’s board of directors (or a committee thereof) approves, or Spark enters into a definitive agreement providing for, a Business Combination, (B) a third party commences, or announces an intention to commence, a tender or exchange offer, the consummation of which would constitute a Business Combination and (i) the board of directors (or a committee thereof) of Spark at any time recommends, or publicly discloses an intention to recommend, that Spark’s shareholders tender their shares into such tender or exchange offer (as it may have been amended), or (ii) the board of directors (or a committee thereof) of Spark does not, within ten business days from the date such offer is first published, sent or given to shareholders, recommend that Spark’s shareholders not tender their shares into such tender or exchange offer (as it may have been amended) or at any time thereafter changes its recommendation with respect to such tender or exchange offer (as it may have been amended) or takes any similar action that results in such board of directors no longer recommending that Spark’s shareholders not tender their shares into such tender or exchange offer, (C) any person or “group” (as such term is used under the Exchange Act) commences, or announces an intention to commence, any “solicitation” of “proxies” (as such terms are used under the Exchange Act) or consents with respect to the voting securities of Spark in which such person or group would, if successful, elect or acquire the ability to elect a majority of the members of the board of directors of Spark or result in a majority of the seats of the board of directors of Spark becoming vacant, or (D) with respect to any pending tender offer or exchange offer for shares of Spark, the consummation of which would constitute a Business Combination, Spark’s board of directors (or any committee thereof) no longer recommends that its shareholders tender their shares into such tender or exchange offer (as it may have been amended). The parties further acknowledge that Spark may enter into additional standstill agreements similar to the provision in this paragraph with third parties in connection with such third parties evaluating a possible transaction with Spark (“Other Standstill Agreement”), and the parties hereby agree that, to the extent that any such Other Standstill Agreement contains provisions that are more favorable to the third party than the provisions in this paragraph, this Agreement shall be deemed automatically amended to incorporate such more favorable terms as set forth in the Other Standstill Agreement. Following the expiration of the Restricted Period, no provision of this agreement shall restrict Company or its Affiliates, directly or indirectly, from taking any action described in this paragraph 7 (including using for the purpose of such action, but not otherwise disclosing any Confidential Information). For the avoidance of doubt, nothing in this paragraph 7 shall prevent the Company from entering into license, collaboration or other similar agreements in the ordinary course of business.
8. Passive Investments. The provisions of paragraph 7 shall not prohibit, Company or its Affiliates from owning and/or acquiring voting shares or other ownership interests in Spark provided that Company together with its Affiliates owns, in the aggregate, not more 5% of such voting securities. The provisions of paragraph 7 shall not prohibit passive investments by a pension or employee benefit plan or trust for Company’s or its Affiliates employees so long as such investments are directed by independent trustees, administrators or employees to whom no Confidential Information has been disclosed.
9. Term and Termination. This Agreement will terminate one (1) year after the Effective Date, or may be terminated by either party at any time upon thirty (30) days written notice to the other party. The receiving party’s obligations under this Agreement will survive termination or expiration of this Agreement for a period of five (5) years after the termination or expiration hereof and will be binding upon the receiving party’s heirs, successors and assigns after such termination or expiration; provided that the rights and obligations in Section 7 shall expire as set forth therein.
10. Notice. Any notice to be given hereunder by either party to the other will be in writing addressed to the address set forth in the opening paragraph above (unless either provides written notice of a different address) and will be deemed given: (a) upon delivery if sent by overnight courier; or (b) three (3) days after deposit in the mail if sent by pre-paid, certified mail, return receipt requested mail.
11. General. This Agreement constitutes the entire agreement between the parties with respect to the subject matter of this Agreement. This Agreement supersedes all previous agreements between the parties relating to the subject matter hereof. The headings to sections of this Agreement are inserted for convenience only and will not be deemed a part hereof or affect the construction or interpretation of any provision hereof. No provision of this Agreement will be deemed waived, amended or modified by either party, unless such waiver, amendment or modification is made in writing and signed by both parties. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware, without reference to conflict of laws principles. Any dispute under this Agreement may be brought in the state courts and the Federal courts located in the State of Delaware, and the parties hereby consent to the personal jurisdiction and venue of these courts. Each party acknowledges and agrees that money damages would not be a sufficient remedy for any breach (or threatened breach) of this Agreement by the receiving party or its Affiliates or representatives and that the disclosing party shall be entitled to equitable relief, including injunction and specific performance, as a remedy for any such breach (or threatened breach), without proof of damages, and each party further agrees to waive, and use its best efforts to cause its Affiliates and representatives to waive any requirement for the securing or posting of any bond in connection with any such remedy. Such remedies shall not be the exclusive remedies for a breach of this Agreement, but will be in addition to all other remedies available at law or in equity. If any provision of this Agreement is found by a proper authority to be unenforceable or invalid, such unenforceability or invalidity will not render this Agreement unenforceable or invalid as a whole, and such provision will be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or applicable court decisions. Neither party will assign or transfer any rights or obligations under this Agreement without the prior written consent of the other party, provided that a party may assign this Agreement to an Affiliate or successor without the consent of the other party in connection with a merger, reorganization, consolidation, change of control, sale of substantially all assets or similar transaction of the assigning party. Neither party will export, directly or indirectly, any technical data acquired from the other pursuant to this Agreement or any product utilizing any such data to any country for which the U.S. Government or any agency thereof at the time of export requires an export license or other governmental approval without first obtaining such license or approval. This Agreement may be executed in one (1) or more counterparts, each of which shall be an original and all of which together shall constitute one and the same document. Signatures delivered by facsimile, PDF or electronic mail shall be as effective as original signatures.
IN WITNESS WHEREOF, duly authorized representatives of the parties have executed this Mutual Non-Disclosure Agreement as of the Effective Date.
SPARK THERAPEUTICS, INC. ROCHE HOLDINGS INC.
By: /s/ Joseph W. LaBarge By: /s/ Bruce Resnick
Name: Joseph W. LaBarge Name: Bruce Resnick
Title: Chief Legal Officer Title: Vice President
| Entailment |
621_nda-20 | 621_nda-20_0 | Q: Receiving Party may retain some Confidential Information even after the return or destruction of Confidential Information.
Text: Exhibit 99.(d)(2)
MUTUAL NON-DISCLOSURE AGREEMENT
THIS MUTUAL NON-DISCLOSURE AGREEMENT (this “Agreement”), entered into as of October 9, 2018 (the “Effective Date”), governs the disclosure of information by and between Spark Therapeutics, Inc., a Delaware corporation, having an address at 3737 Market Street, Suite 1300, Philadelphia, PA (“Spark”), and Roche Holdings Inc, a Delaware company having an address at 1 DNA Way, South San Francisco, CA 94080 (“Company”). For purposes of this Agreement, references to each of Spark and Company, and corresponding references to disclosing party and receiving party herein, shall include the respective subsidiaries and other entities controlled, directly or indirectly by Spark or Company, as the case may be; provided, however, with respect to Company, the foregoing provision shall exclude Chugai Pharmaceutical Co., Ltd, 1-1 Nihonbashi-Muromachi 2-chome, Chuo-ku, Tokyo, 103-8324 (“Chugai”) unless the Company opts for such inclusion of Chugai and their respective subsidiaries by giving written notice to the Company.
1. Purpose. This Agreement is made in order for each party to disclose to the other, during the term of this Agreement, such scientific, technical, business and financial information as the disclosing party may elect to disclose so that the receiving party may use the same solely for the purpose of evaluating the Confidential Information internally in connection with evaluating a possible transaction between the parties relating to one, more or all of Spark’s gene therapy product candidates and/or assets (the “Purpose”) under terms that will protect the confidential and proprietary nature of such information.
2. Confidential Information. As used herein, “Confidential Information” will mean any and all scientific, technical, business and financial information, including third party information, that is furnished or disclosed, in whatever form or medium (regardless of whether tangible, intangible, visual, or oral), to the receiving party, before or after the Effective Date. “Confidential Information” includes but is not limited to: (a) patent and patent applications; (b) manufacturing, including process and know-how; (c) clinical trial design or results; (d) vendors; (e) trade secrets; and (f) other proprietary information, ideas, gene sequences, cell lines, samples, chemical compounds, assays, biological materials, techniques, sketches, drawings, works of authorship, models, inventions, know-how, processes, apparatuses, equipment, and formulae related to the current, future, and proposed products and services of each of the parties, and including without limitation, their respective information concerning research, experimental work, development, design details and specifications, engineering, financial information, procurement requirements, purchasing, manufacturing, customer lists, investors, employees, business and contractual relationships, business forecasts, analyst reports, sales and merchandising, marketing plans and any additional non-public information the disclosing party provides.
3. Obligations. Each receiving party agrees: (a) to use the disclosing party’s Confidential Information solely for the Purpose stated above and for no other reason; (b) to protect the confidentiality of the disclosing party’s Confidential Information; (c) not to disclose any of the disclosing party’s Confidential Information to anyone, except those employees, consultants or representatives of the receiving party or its Affiliates who have a “need to know” the information for the Purpose and who have signed confidentiality agreements or are otherwise bound by confidentiality and non-use obligations at least as restrictive as those contained herein; and (d) to notify appropriately such employees, consultants and representatives of the receiving party or its Affiliates that the disclosure is made in confidence and under the applicable confidentiality obligations. The receiving party agrees to be responsible for any breaches of any of the provisions of this Agreement by any of its employees, consultants or representatives. Each receiving party agrees that in the event permission is granted by the disclosing party to copy Confidential Information, each such copy will contain and state the same confidential or proprietary notices or legends, if any, that appear on the original.
4. Exceptions. The obligations and restrictions imposed by this Agreement will not apply to any Confidential Information that the receiving party can establish by competent evidence acceptable under applicable law and as deemed appropriate by the competent court: (a) is already known to the receiving party prior to the disclosing party’s disclosure; (b) is or becomes publicly available through no fault of the receiving party; (c) is obtained by the receiving party from a third party; or (d) is independently developed by the receiving party without use of or reference to any Confidential Information. Notwithstanding the foregoing, (i) any Confidential Information shall not be deemed to be within the foregoing exceptions merely because such information is embraced by more general information in the public domain or in the possession of the receiving party, and (ii) any combination of features shall not be deemed to be within the foregoing exceptions merely because individual features are in the public domain or in the possession of the receiving party, but only if the combination itself and its principle of operation are in the public domain or in the possession of the receiving party. Notwithstanding anything contained in this Agreement, other than in the case of an External Demand (as defined below), the receiving party may disclose either the fact that discussions or negotiations are taking place concerning the Purpose or any of the terms, conditions or other facts with respect to the Purpose, including the status thereof or that Confidential Information has been made available to the receiving party (such information, “Transaction Information”) if but only if (i) such disclosure is required under applicable securities or antitrust laws or under applicable stock exchange rules as determined based on advice of legal counsel and (ii) such disclosure requirement does not arise from a breach of this Agreement. In the event the receiving party receives a request or is required by deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process or pursuant to a formal request from a regulatory examiner (any such requested or required disclosure, an “External Demand”) to disclose all or any part of the Confidential Information of the disclosing party or the Transaction Information, the receiving party shall (1) immediately notify the disclosing party of the existence, terms and circumstances surrounding such External Demand, (2) consult with the disclosing party on the advisability of taking legally available steps to resist or narrow such request or disclosure, and (3) assist the disclosing party, at the disclosing party’s expense, in seeking a protective order or other appropriate remedy to the extent available under the circumstances. In the event that such protective order or other remedy is not obtained or that the disclosing party waives compliance with the provisions hereof, (x) the receiving party may disclose only that portion of the Confidential Information or Transaction Information which the receiving party is advised by counsel is legally required to be disclosed and to only those persons to whom the receiving party is advised by counsel are legally required to receive such information, and the receiving party shall exercise commercially reasonable efforts to obtain assurance that confidential treatment will be accorded such Confidential Information or Transaction Information, and (y) the receiving party shall not be liable for such disclosure, unless such disclosure was caused by or resulted from a previous disclosure by the receiving party not permitted by this Agreement.
5. Handling of Information and Materials. Confidential Information will not be reproduced in any form except as required to accomplish the Purpose of this Agreement. Any reproduction of any Confidential Information of the disclosing party will remain the property of the disclosing party and will contain and state any and all confidential or proprietary notices or legends that appear on the original, unless otherwise authorized in writing by the disclosing party. Upon termination or expiration of this Agreement, or upon written request of the disclosing party, each receiving party will promptly destroy (to the extent reasonably practicable in case of electronic files) or return to the other all documents and other tangible materials representing the disclosing party’s Confidential Information and all copies thereof. Notwithstanding the forgoing the receiving party may retain one copy of all Confidential Information in its legal department solely for archival and compliance purposes and its external advisors, if any, may keep one copy of their Confidential Information in accordance with the laws and professional standards applicable to them.
6. No Other Rights. The parties recognize and agree that nothing contained in this Agreement will be construed as granting any property rights, by license or otherwise, to any Confidential Information of the disclosing party disclosed pursuant to this Agreement, or to any invention or any patent, copyright, trademark, or other intellectual property right that has issued or that may issue, based on such Confidential Information. Each receiving party will not make, have made, use or sell for any purpose any product or other item using, incorporating or derived from any Confidential Information of the disclosing party.
7. Standstill. Company hereby acknowledges that, unless otherwise agreed in writing by Spark, for a period of twelve (12) months from the date of this Agreement (the “Restricted Period”) none of Company, nor any of its Affiliates (as defined in Rule 12b-2 under the Securities Exchange Act of 1934, as amended) who are provided with Confidential Information or become aware of Company’s discussions with Spark, will: (a) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of Spark’s assets or businesses, or similar transactions involving Spark or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to Spark; (b) (i) acquire beneficial ownership of any voting securities (including in derivative form) of Spark (collectively, a transaction specified in (a)(i), (a)(ii) and (b)(i) involving a majority of Spark’s outstanding voting securities or consolidated assets, is referred to as a “Business Combination”), (ii) propose or seek, whether alone or in concert with others, any “solicitation” (as such term is used in the rules of the Securities and Exchange Commission) of proxies or consents to vote any securities (including in derivative form) of Spark, (iii) nominate any person as a director of Spark, or (iv) propose any matter to be voted upon by the stockholders of Spark; (c) directly or indirectly, form, join or in any way participate in a third party “group” (as such term is used in the rules of the Securities and Exchange Commission) (or discuss with any third party the potential formation of a group) with respect to any voting securities (including in derivative form) of Spark or a Business Combination involving Spark; (d) request Spark (or any of its officers, directors or representatives), directly or indirectly, to amend or waive any provision of this paragraph (including this sentence) in a way which would require Spark to publicly disclose the same; or (d) take any action that could require Spark to make a public announcement regarding a potential Business Combination; provided, however, that nothing in this paragraph shall prohibit Company from make a confidential proposal to Spark or Spark’s Chairman of the Board of Directors for a transaction involving a Business Combination at any time for a transaction involving a Business Combination. Notwithstanding the foregoing provisions of this paragraph to the contrary, the foregoing restrictions set forth in this paragraph shall immediately and automatically terminate and cease to apply with respect to Company and its Affiliates without any further action in the event that (A) Spark’s board of directors (or a committee thereof) approves, or Spark enters into a definitive agreement providing for, a Business Combination, (B) a third party commences, or announces an intention to commence, a tender or exchange offer, the consummation of which would constitute a Business Combination and (i) the board of directors (or a committee thereof) of Spark at any time recommends, or publicly discloses an intention to recommend, that Spark’s shareholders tender their shares into such tender or exchange offer (as it may have been amended), or (ii) the board of directors (or a committee thereof) of Spark does not, within ten business days from the date such offer is first published, sent or given to shareholders, recommend that Spark’s shareholders not tender their shares into such tender or exchange offer (as it may have been amended) or at any time thereafter changes its recommendation with respect to such tender or exchange offer (as it may have been amended) or takes any similar action that results in such board of directors no longer recommending that Spark’s shareholders not tender their shares into such tender or exchange offer, (C) any person or “group” (as such term is used under the Exchange Act) commences, or announces an intention to commence, any “solicitation” of “proxies” (as such terms are used under the Exchange Act) or consents with respect to the voting securities of Spark in which such person or group would, if successful, elect or acquire the ability to elect a majority of the members of the board of directors of Spark or result in a majority of the seats of the board of directors of Spark becoming vacant, or (D) with respect to any pending tender offer or exchange offer for shares of Spark, the consummation of which would constitute a Business Combination, Spark’s board of directors (or any committee thereof) no longer recommends that its shareholders tender their shares into such tender or exchange offer (as it may have been amended). The parties further acknowledge that Spark may enter into additional standstill agreements similar to the provision in this paragraph with third parties in connection with such third parties evaluating a possible transaction with Spark (“Other Standstill Agreement”), and the parties hereby agree that, to the extent that any such Other Standstill Agreement contains provisions that are more favorable to the third party than the provisions in this paragraph, this Agreement shall be deemed automatically amended to incorporate such more favorable terms as set forth in the Other Standstill Agreement. Following the expiration of the Restricted Period, no provision of this agreement shall restrict Company or its Affiliates, directly or indirectly, from taking any action described in this paragraph 7 (including using for the purpose of such action, but not otherwise disclosing any Confidential Information). For the avoidance of doubt, nothing in this paragraph 7 shall prevent the Company from entering into license, collaboration or other similar agreements in the ordinary course of business.
8. Passive Investments. The provisions of paragraph 7 shall not prohibit, Company or its Affiliates from owning and/or acquiring voting shares or other ownership interests in Spark provided that Company together with its Affiliates owns, in the aggregate, not more 5% of such voting securities. The provisions of paragraph 7 shall not prohibit passive investments by a pension or employee benefit plan or trust for Company’s or its Affiliates employees so long as such investments are directed by independent trustees, administrators or employees to whom no Confidential Information has been disclosed.
9. Term and Termination. This Agreement will terminate one (1) year after the Effective Date, or may be terminated by either party at any time upon thirty (30) days written notice to the other party. The receiving party’s obligations under this Agreement will survive termination or expiration of this Agreement for a period of five (5) years after the termination or expiration hereof and will be binding upon the receiving party’s heirs, successors and assigns after such termination or expiration; provided that the rights and obligations in Section 7 shall expire as set forth therein.
10. Notice. Any notice to be given hereunder by either party to the other will be in writing addressed to the address set forth in the opening paragraph above (unless either provides written notice of a different address) and will be deemed given: (a) upon delivery if sent by overnight courier; or (b) three (3) days after deposit in the mail if sent by pre-paid, certified mail, return receipt requested mail.
11. General. This Agreement constitutes the entire agreement between the parties with respect to the subject matter of this Agreement. This Agreement supersedes all previous agreements between the parties relating to the subject matter hereof. The headings to sections of this Agreement are inserted for convenience only and will not be deemed a part hereof or affect the construction or interpretation of any provision hereof. No provision of this Agreement will be deemed waived, amended or modified by either party, unless such waiver, amendment or modification is made in writing and signed by both parties. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware, without reference to conflict of laws principles. Any dispute under this Agreement may be brought in the state courts and the Federal courts located in the State of Delaware, and the parties hereby consent to the personal jurisdiction and venue of these courts. Each party acknowledges and agrees that money damages would not be a sufficient remedy for any breach (or threatened breach) of this Agreement by the receiving party or its Affiliates or representatives and that the disclosing party shall be entitled to equitable relief, including injunction and specific performance, as a remedy for any such breach (or threatened breach), without proof of damages, and each party further agrees to waive, and use its best efforts to cause its Affiliates and representatives to waive any requirement for the securing or posting of any bond in connection with any such remedy. Such remedies shall not be the exclusive remedies for a breach of this Agreement, but will be in addition to all other remedies available at law or in equity. If any provision of this Agreement is found by a proper authority to be unenforceable or invalid, such unenforceability or invalidity will not render this Agreement unenforceable or invalid as a whole, and such provision will be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or applicable court decisions. Neither party will assign or transfer any rights or obligations under this Agreement without the prior written consent of the other party, provided that a party may assign this Agreement to an Affiliate or successor without the consent of the other party in connection with a merger, reorganization, consolidation, change of control, sale of substantially all assets or similar transaction of the assigning party. Neither party will export, directly or indirectly, any technical data acquired from the other pursuant to this Agreement or any product utilizing any such data to any country for which the U.S. Government or any agency thereof at the time of export requires an export license or other governmental approval without first obtaining such license or approval. This Agreement may be executed in one (1) or more counterparts, each of which shall be an original and all of which together shall constitute one and the same document. Signatures delivered by facsimile, PDF or electronic mail shall be as effective as original signatures.
IN WITNESS WHEREOF, duly authorized representatives of the parties have executed this Mutual Non-Disclosure Agreement as of the Effective Date.
SPARK THERAPEUTICS, INC. ROCHE HOLDINGS INC.
By: /s/ Joseph W. LaBarge By: /s/ Bruce Resnick
Name: Joseph W. LaBarge Name: Bruce Resnick
Title: Chief Legal Officer Title: Vice President
| Entailment |
621_nda-3 | 621_nda-3_0 | Q: Confidential Information may include verbally conveyed information.
Text: Exhibit 99.(d)(2)
MUTUAL NON-DISCLOSURE AGREEMENT
THIS MUTUAL NON-DISCLOSURE AGREEMENT (this “Agreement”), entered into as of October 9, 2018 (the “Effective Date”), governs the disclosure of information by and between Spark Therapeutics, Inc., a Delaware corporation, having an address at 3737 Market Street, Suite 1300, Philadelphia, PA (“Spark”), and Roche Holdings Inc, a Delaware company having an address at 1 DNA Way, South San Francisco, CA 94080 (“Company”). For purposes of this Agreement, references to each of Spark and Company, and corresponding references to disclosing party and receiving party herein, shall include the respective subsidiaries and other entities controlled, directly or indirectly by Spark or Company, as the case may be; provided, however, with respect to Company, the foregoing provision shall exclude Chugai Pharmaceutical Co., Ltd, 1-1 Nihonbashi-Muromachi 2-chome, Chuo-ku, Tokyo, 103-8324 (“Chugai”) unless the Company opts for such inclusion of Chugai and their respective subsidiaries by giving written notice to the Company.
1. Purpose. This Agreement is made in order for each party to disclose to the other, during the term of this Agreement, such scientific, technical, business and financial information as the disclosing party may elect to disclose so that the receiving party may use the same solely for the purpose of evaluating the Confidential Information internally in connection with evaluating a possible transaction between the parties relating to one, more or all of Spark’s gene therapy product candidates and/or assets (the “Purpose”) under terms that will protect the confidential and proprietary nature of such information.
2. Confidential Information. As used herein, “Confidential Information” will mean any and all scientific, technical, business and financial information, including third party information, that is furnished or disclosed, in whatever form or medium (regardless of whether tangible, intangible, visual, or oral), to the receiving party, before or after the Effective Date. “Confidential Information” includes but is not limited to: (a) patent and patent applications; (b) manufacturing, including process and know-how; (c) clinical trial design or results; (d) vendors; (e) trade secrets; and (f) other proprietary information, ideas, gene sequences, cell lines, samples, chemical compounds, assays, biological materials, techniques, sketches, drawings, works of authorship, models, inventions, know-how, processes, apparatuses, equipment, and formulae related to the current, future, and proposed products and services of each of the parties, and including without limitation, their respective information concerning research, experimental work, development, design details and specifications, engineering, financial information, procurement requirements, purchasing, manufacturing, customer lists, investors, employees, business and contractual relationships, business forecasts, analyst reports, sales and merchandising, marketing plans and any additional non-public information the disclosing party provides.
3. Obligations. Each receiving party agrees: (a) to use the disclosing party’s Confidential Information solely for the Purpose stated above and for no other reason; (b) to protect the confidentiality of the disclosing party’s Confidential Information; (c) not to disclose any of the disclosing party’s Confidential Information to anyone, except those employees, consultants or representatives of the receiving party or its Affiliates who have a “need to know” the information for the Purpose and who have signed confidentiality agreements or are otherwise bound by confidentiality and non-use obligations at least as restrictive as those contained herein; and (d) to notify appropriately such employees, consultants and representatives of the receiving party or its Affiliates that the disclosure is made in confidence and under the applicable confidentiality obligations. The receiving party agrees to be responsible for any breaches of any of the provisions of this Agreement by any of its employees, consultants or representatives. Each receiving party agrees that in the event permission is granted by the disclosing party to copy Confidential Information, each such copy will contain and state the same confidential or proprietary notices or legends, if any, that appear on the original.
4. Exceptions. The obligations and restrictions imposed by this Agreement will not apply to any Confidential Information that the receiving party can establish by competent evidence acceptable under applicable law and as deemed appropriate by the competent court: (a) is already known to the receiving party prior to the disclosing party’s disclosure; (b) is or becomes publicly available through no fault of the receiving party; (c) is obtained by the receiving party from a third party; or (d) is independently developed by the receiving party without use of or reference to any Confidential Information. Notwithstanding the foregoing, (i) any Confidential Information shall not be deemed to be within the foregoing exceptions merely because such information is embraced by more general information in the public domain or in the possession of the receiving party, and (ii) any combination of features shall not be deemed to be within the foregoing exceptions merely because individual features are in the public domain or in the possession of the receiving party, but only if the combination itself and its principle of operation are in the public domain or in the possession of the receiving party. Notwithstanding anything contained in this Agreement, other than in the case of an External Demand (as defined below), the receiving party may disclose either the fact that discussions or negotiations are taking place concerning the Purpose or any of the terms, conditions or other facts with respect to the Purpose, including the status thereof or that Confidential Information has been made available to the receiving party (such information, “Transaction Information”) if but only if (i) such disclosure is required under applicable securities or antitrust laws or under applicable stock exchange rules as determined based on advice of legal counsel and (ii) such disclosure requirement does not arise from a breach of this Agreement. In the event the receiving party receives a request or is required by deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process or pursuant to a formal request from a regulatory examiner (any such requested or required disclosure, an “External Demand”) to disclose all or any part of the Confidential Information of the disclosing party or the Transaction Information, the receiving party shall (1) immediately notify the disclosing party of the existence, terms and circumstances surrounding such External Demand, (2) consult with the disclosing party on the advisability of taking legally available steps to resist or narrow such request or disclosure, and (3) assist the disclosing party, at the disclosing party’s expense, in seeking a protective order or other appropriate remedy to the extent available under the circumstances. In the event that such protective order or other remedy is not obtained or that the disclosing party waives compliance with the provisions hereof, (x) the receiving party may disclose only that portion of the Confidential Information or Transaction Information which the receiving party is advised by counsel is legally required to be disclosed and to only those persons to whom the receiving party is advised by counsel are legally required to receive such information, and the receiving party shall exercise commercially reasonable efforts to obtain assurance that confidential treatment will be accorded such Confidential Information or Transaction Information, and (y) the receiving party shall not be liable for such disclosure, unless such disclosure was caused by or resulted from a previous disclosure by the receiving party not permitted by this Agreement.
5. Handling of Information and Materials. Confidential Information will not be reproduced in any form except as required to accomplish the Purpose of this Agreement. Any reproduction of any Confidential Information of the disclosing party will remain the property of the disclosing party and will contain and state any and all confidential or proprietary notices or legends that appear on the original, unless otherwise authorized in writing by the disclosing party. Upon termination or expiration of this Agreement, or upon written request of the disclosing party, each receiving party will promptly destroy (to the extent reasonably practicable in case of electronic files) or return to the other all documents and other tangible materials representing the disclosing party’s Confidential Information and all copies thereof. Notwithstanding the forgoing the receiving party may retain one copy of all Confidential Information in its legal department solely for archival and compliance purposes and its external advisors, if any, may keep one copy of their Confidential Information in accordance with the laws and professional standards applicable to them.
6. No Other Rights. The parties recognize and agree that nothing contained in this Agreement will be construed as granting any property rights, by license or otherwise, to any Confidential Information of the disclosing party disclosed pursuant to this Agreement, or to any invention or any patent, copyright, trademark, or other intellectual property right that has issued or that may issue, based on such Confidential Information. Each receiving party will not make, have made, use or sell for any purpose any product or other item using, incorporating or derived from any Confidential Information of the disclosing party.
7. Standstill. Company hereby acknowledges that, unless otherwise agreed in writing by Spark, for a period of twelve (12) months from the date of this Agreement (the “Restricted Period”) none of Company, nor any of its Affiliates (as defined in Rule 12b-2 under the Securities Exchange Act of 1934, as amended) who are provided with Confidential Information or become aware of Company’s discussions with Spark, will: (a) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of Spark’s assets or businesses, or similar transactions involving Spark or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to Spark; (b) (i) acquire beneficial ownership of any voting securities (including in derivative form) of Spark (collectively, a transaction specified in (a)(i), (a)(ii) and (b)(i) involving a majority of Spark’s outstanding voting securities or consolidated assets, is referred to as a “Business Combination”), (ii) propose or seek, whether alone or in concert with others, any “solicitation” (as such term is used in the rules of the Securities and Exchange Commission) of proxies or consents to vote any securities (including in derivative form) of Spark, (iii) nominate any person as a director of Spark, or (iv) propose any matter to be voted upon by the stockholders of Spark; (c) directly or indirectly, form, join or in any way participate in a third party “group” (as such term is used in the rules of the Securities and Exchange Commission) (or discuss with any third party the potential formation of a group) with respect to any voting securities (including in derivative form) of Spark or a Business Combination involving Spark; (d) request Spark (or any of its officers, directors or representatives), directly or indirectly, to amend or waive any provision of this paragraph (including this sentence) in a way which would require Spark to publicly disclose the same; or (d) take any action that could require Spark to make a public announcement regarding a potential Business Combination; provided, however, that nothing in this paragraph shall prohibit Company from make a confidential proposal to Spark or Spark’s Chairman of the Board of Directors for a transaction involving a Business Combination at any time for a transaction involving a Business Combination. Notwithstanding the foregoing provisions of this paragraph to the contrary, the foregoing restrictions set forth in this paragraph shall immediately and automatically terminate and cease to apply with respect to Company and its Affiliates without any further action in the event that (A) Spark’s board of directors (or a committee thereof) approves, or Spark enters into a definitive agreement providing for, a Business Combination, (B) a third party commences, or announces an intention to commence, a tender or exchange offer, the consummation of which would constitute a Business Combination and (i) the board of directors (or a committee thereof) of Spark at any time recommends, or publicly discloses an intention to recommend, that Spark’s shareholders tender their shares into such tender or exchange offer (as it may have been amended), or (ii) the board of directors (or a committee thereof) of Spark does not, within ten business days from the date such offer is first published, sent or given to shareholders, recommend that Spark’s shareholders not tender their shares into such tender or exchange offer (as it may have been amended) or at any time thereafter changes its recommendation with respect to such tender or exchange offer (as it may have been amended) or takes any similar action that results in such board of directors no longer recommending that Spark’s shareholders not tender their shares into such tender or exchange offer, (C) any person or “group” (as such term is used under the Exchange Act) commences, or announces an intention to commence, any “solicitation” of “proxies” (as such terms are used under the Exchange Act) or consents with respect to the voting securities of Spark in which such person or group would, if successful, elect or acquire the ability to elect a majority of the members of the board of directors of Spark or result in a majority of the seats of the board of directors of Spark becoming vacant, or (D) with respect to any pending tender offer or exchange offer for shares of Spark, the consummation of which would constitute a Business Combination, Spark’s board of directors (or any committee thereof) no longer recommends that its shareholders tender their shares into such tender or exchange offer (as it may have been amended). The parties further acknowledge that Spark may enter into additional standstill agreements similar to the provision in this paragraph with third parties in connection with such third parties evaluating a possible transaction with Spark (“Other Standstill Agreement”), and the parties hereby agree that, to the extent that any such Other Standstill Agreement contains provisions that are more favorable to the third party than the provisions in this paragraph, this Agreement shall be deemed automatically amended to incorporate such more favorable terms as set forth in the Other Standstill Agreement. Following the expiration of the Restricted Period, no provision of this agreement shall restrict Company or its Affiliates, directly or indirectly, from taking any action described in this paragraph 7 (including using for the purpose of such action, but not otherwise disclosing any Confidential Information). For the avoidance of doubt, nothing in this paragraph 7 shall prevent the Company from entering into license, collaboration or other similar agreements in the ordinary course of business.
8. Passive Investments. The provisions of paragraph 7 shall not prohibit, Company or its Affiliates from owning and/or acquiring voting shares or other ownership interests in Spark provided that Company together with its Affiliates owns, in the aggregate, not more 5% of such voting securities. The provisions of paragraph 7 shall not prohibit passive investments by a pension or employee benefit plan or trust for Company’s or its Affiliates employees so long as such investments are directed by independent trustees, administrators or employees to whom no Confidential Information has been disclosed.
9. Term and Termination. This Agreement will terminate one (1) year after the Effective Date, or may be terminated by either party at any time upon thirty (30) days written notice to the other party. The receiving party’s obligations under this Agreement will survive termination or expiration of this Agreement for a period of five (5) years after the termination or expiration hereof and will be binding upon the receiving party’s heirs, successors and assigns after such termination or expiration; provided that the rights and obligations in Section 7 shall expire as set forth therein.
10. Notice. Any notice to be given hereunder by either party to the other will be in writing addressed to the address set forth in the opening paragraph above (unless either provides written notice of a different address) and will be deemed given: (a) upon delivery if sent by overnight courier; or (b) three (3) days after deposit in the mail if sent by pre-paid, certified mail, return receipt requested mail.
11. General. This Agreement constitutes the entire agreement between the parties with respect to the subject matter of this Agreement. This Agreement supersedes all previous agreements between the parties relating to the subject matter hereof. The headings to sections of this Agreement are inserted for convenience only and will not be deemed a part hereof or affect the construction or interpretation of any provision hereof. No provision of this Agreement will be deemed waived, amended or modified by either party, unless such waiver, amendment or modification is made in writing and signed by both parties. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware, without reference to conflict of laws principles. Any dispute under this Agreement may be brought in the state courts and the Federal courts located in the State of Delaware, and the parties hereby consent to the personal jurisdiction and venue of these courts. Each party acknowledges and agrees that money damages would not be a sufficient remedy for any breach (or threatened breach) of this Agreement by the receiving party or its Affiliates or representatives and that the disclosing party shall be entitled to equitable relief, including injunction and specific performance, as a remedy for any such breach (or threatened breach), without proof of damages, and each party further agrees to waive, and use its best efforts to cause its Affiliates and representatives to waive any requirement for the securing or posting of any bond in connection with any such remedy. Such remedies shall not be the exclusive remedies for a breach of this Agreement, but will be in addition to all other remedies available at law or in equity. If any provision of this Agreement is found by a proper authority to be unenforceable or invalid, such unenforceability or invalidity will not render this Agreement unenforceable or invalid as a whole, and such provision will be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or applicable court decisions. Neither party will assign or transfer any rights or obligations under this Agreement without the prior written consent of the other party, provided that a party may assign this Agreement to an Affiliate or successor without the consent of the other party in connection with a merger, reorganization, consolidation, change of control, sale of substantially all assets or similar transaction of the assigning party. Neither party will export, directly or indirectly, any technical data acquired from the other pursuant to this Agreement or any product utilizing any such data to any country for which the U.S. Government or any agency thereof at the time of export requires an export license or other governmental approval without first obtaining such license or approval. This Agreement may be executed in one (1) or more counterparts, each of which shall be an original and all of which together shall constitute one and the same document. Signatures delivered by facsimile, PDF or electronic mail shall be as effective as original signatures.
IN WITNESS WHEREOF, duly authorized representatives of the parties have executed this Mutual Non-Disclosure Agreement as of the Effective Date.
SPARK THERAPEUTICS, INC. ROCHE HOLDINGS INC.
By: /s/ Joseph W. LaBarge By: /s/ Bruce Resnick
Name: Joseph W. LaBarge Name: Bruce Resnick
Title: Chief Legal Officer Title: Vice President
| Entailment |
621_nda-18 | 621_nda-18_0 | Q: Receiving Party shall not solicit some of Disclosing Party's representatives.
Text: Exhibit 99.(d)(2)
MUTUAL NON-DISCLOSURE AGREEMENT
THIS MUTUAL NON-DISCLOSURE AGREEMENT (this “Agreement”), entered into as of October 9, 2018 (the “Effective Date”), governs the disclosure of information by and between Spark Therapeutics, Inc., a Delaware corporation, having an address at 3737 Market Street, Suite 1300, Philadelphia, PA (“Spark”), and Roche Holdings Inc, a Delaware company having an address at 1 DNA Way, South San Francisco, CA 94080 (“Company”). For purposes of this Agreement, references to each of Spark and Company, and corresponding references to disclosing party and receiving party herein, shall include the respective subsidiaries and other entities controlled, directly or indirectly by Spark or Company, as the case may be; provided, however, with respect to Company, the foregoing provision shall exclude Chugai Pharmaceutical Co., Ltd, 1-1 Nihonbashi-Muromachi 2-chome, Chuo-ku, Tokyo, 103-8324 (“Chugai”) unless the Company opts for such inclusion of Chugai and their respective subsidiaries by giving written notice to the Company.
1. Purpose. This Agreement is made in order for each party to disclose to the other, during the term of this Agreement, such scientific, technical, business and financial information as the disclosing party may elect to disclose so that the receiving party may use the same solely for the purpose of evaluating the Confidential Information internally in connection with evaluating a possible transaction between the parties relating to one, more or all of Spark’s gene therapy product candidates and/or assets (the “Purpose”) under terms that will protect the confidential and proprietary nature of such information.
2. Confidential Information. As used herein, “Confidential Information” will mean any and all scientific, technical, business and financial information, including third party information, that is furnished or disclosed, in whatever form or medium (regardless of whether tangible, intangible, visual, or oral), to the receiving party, before or after the Effective Date. “Confidential Information” includes but is not limited to: (a) patent and patent applications; (b) manufacturing, including process and know-how; (c) clinical trial design or results; (d) vendors; (e) trade secrets; and (f) other proprietary information, ideas, gene sequences, cell lines, samples, chemical compounds, assays, biological materials, techniques, sketches, drawings, works of authorship, models, inventions, know-how, processes, apparatuses, equipment, and formulae related to the current, future, and proposed products and services of each of the parties, and including without limitation, their respective information concerning research, experimental work, development, design details and specifications, engineering, financial information, procurement requirements, purchasing, manufacturing, customer lists, investors, employees, business and contractual relationships, business forecasts, analyst reports, sales and merchandising, marketing plans and any additional non-public information the disclosing party provides.
3. Obligations. Each receiving party agrees: (a) to use the disclosing party’s Confidential Information solely for the Purpose stated above and for no other reason; (b) to protect the confidentiality of the disclosing party’s Confidential Information; (c) not to disclose any of the disclosing party’s Confidential Information to anyone, except those employees, consultants or representatives of the receiving party or its Affiliates who have a “need to know” the information for the Purpose and who have signed confidentiality agreements or are otherwise bound by confidentiality and non-use obligations at least as restrictive as those contained herein; and (d) to notify appropriately such employees, consultants and representatives of the receiving party or its Affiliates that the disclosure is made in confidence and under the applicable confidentiality obligations. The receiving party agrees to be responsible for any breaches of any of the provisions of this Agreement by any of its employees, consultants or representatives. Each receiving party agrees that in the event permission is granted by the disclosing party to copy Confidential Information, each such copy will contain and state the same confidential or proprietary notices or legends, if any, that appear on the original.
4. Exceptions. The obligations and restrictions imposed by this Agreement will not apply to any Confidential Information that the receiving party can establish by competent evidence acceptable under applicable law and as deemed appropriate by the competent court: (a) is already known to the receiving party prior to the disclosing party’s disclosure; (b) is or becomes publicly available through no fault of the receiving party; (c) is obtained by the receiving party from a third party; or (d) is independently developed by the receiving party without use of or reference to any Confidential Information. Notwithstanding the foregoing, (i) any Confidential Information shall not be deemed to be within the foregoing exceptions merely because such information is embraced by more general information in the public domain or in the possession of the receiving party, and (ii) any combination of features shall not be deemed to be within the foregoing exceptions merely because individual features are in the public domain or in the possession of the receiving party, but only if the combination itself and its principle of operation are in the public domain or in the possession of the receiving party. Notwithstanding anything contained in this Agreement, other than in the case of an External Demand (as defined below), the receiving party may disclose either the fact that discussions or negotiations are taking place concerning the Purpose or any of the terms, conditions or other facts with respect to the Purpose, including the status thereof or that Confidential Information has been made available to the receiving party (such information, “Transaction Information”) if but only if (i) such disclosure is required under applicable securities or antitrust laws or under applicable stock exchange rules as determined based on advice of legal counsel and (ii) such disclosure requirement does not arise from a breach of this Agreement. In the event the receiving party receives a request or is required by deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process or pursuant to a formal request from a regulatory examiner (any such requested or required disclosure, an “External Demand”) to disclose all or any part of the Confidential Information of the disclosing party or the Transaction Information, the receiving party shall (1) immediately notify the disclosing party of the existence, terms and circumstances surrounding such External Demand, (2) consult with the disclosing party on the advisability of taking legally available steps to resist or narrow such request or disclosure, and (3) assist the disclosing party, at the disclosing party’s expense, in seeking a protective order or other appropriate remedy to the extent available under the circumstances. In the event that such protective order or other remedy is not obtained or that the disclosing party waives compliance with the provisions hereof, (x) the receiving party may disclose only that portion of the Confidential Information or Transaction Information which the receiving party is advised by counsel is legally required to be disclosed and to only those persons to whom the receiving party is advised by counsel are legally required to receive such information, and the receiving party shall exercise commercially reasonable efforts to obtain assurance that confidential treatment will be accorded such Confidential Information or Transaction Information, and (y) the receiving party shall not be liable for such disclosure, unless such disclosure was caused by or resulted from a previous disclosure by the receiving party not permitted by this Agreement.
5. Handling of Information and Materials. Confidential Information will not be reproduced in any form except as required to accomplish the Purpose of this Agreement. Any reproduction of any Confidential Information of the disclosing party will remain the property of the disclosing party and will contain and state any and all confidential or proprietary notices or legends that appear on the original, unless otherwise authorized in writing by the disclosing party. Upon termination or expiration of this Agreement, or upon written request of the disclosing party, each receiving party will promptly destroy (to the extent reasonably practicable in case of electronic files) or return to the other all documents and other tangible materials representing the disclosing party’s Confidential Information and all copies thereof. Notwithstanding the forgoing the receiving party may retain one copy of all Confidential Information in its legal department solely for archival and compliance purposes and its external advisors, if any, may keep one copy of their Confidential Information in accordance with the laws and professional standards applicable to them.
6. No Other Rights. The parties recognize and agree that nothing contained in this Agreement will be construed as granting any property rights, by license or otherwise, to any Confidential Information of the disclosing party disclosed pursuant to this Agreement, or to any invention or any patent, copyright, trademark, or other intellectual property right that has issued or that may issue, based on such Confidential Information. Each receiving party will not make, have made, use or sell for any purpose any product or other item using, incorporating or derived from any Confidential Information of the disclosing party.
7. Standstill. Company hereby acknowledges that, unless otherwise agreed in writing by Spark, for a period of twelve (12) months from the date of this Agreement (the “Restricted Period”) none of Company, nor any of its Affiliates (as defined in Rule 12b-2 under the Securities Exchange Act of 1934, as amended) who are provided with Confidential Information or become aware of Company’s discussions with Spark, will: (a) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of Spark’s assets or businesses, or similar transactions involving Spark or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to Spark; (b) (i) acquire beneficial ownership of any voting securities (including in derivative form) of Spark (collectively, a transaction specified in (a)(i), (a)(ii) and (b)(i) involving a majority of Spark’s outstanding voting securities or consolidated assets, is referred to as a “Business Combination”), (ii) propose or seek, whether alone or in concert with others, any “solicitation” (as such term is used in the rules of the Securities and Exchange Commission) of proxies or consents to vote any securities (including in derivative form) of Spark, (iii) nominate any person as a director of Spark, or (iv) propose any matter to be voted upon by the stockholders of Spark; (c) directly or indirectly, form, join or in any way participate in a third party “group” (as such term is used in the rules of the Securities and Exchange Commission) (or discuss with any third party the potential formation of a group) with respect to any voting securities (including in derivative form) of Spark or a Business Combination involving Spark; (d) request Spark (or any of its officers, directors or representatives), directly or indirectly, to amend or waive any provision of this paragraph (including this sentence) in a way which would require Spark to publicly disclose the same; or (d) take any action that could require Spark to make a public announcement regarding a potential Business Combination; provided, however, that nothing in this paragraph shall prohibit Company from make a confidential proposal to Spark or Spark’s Chairman of the Board of Directors for a transaction involving a Business Combination at any time for a transaction involving a Business Combination. Notwithstanding the foregoing provisions of this paragraph to the contrary, the foregoing restrictions set forth in this paragraph shall immediately and automatically terminate and cease to apply with respect to Company and its Affiliates without any further action in the event that (A) Spark’s board of directors (or a committee thereof) approves, or Spark enters into a definitive agreement providing for, a Business Combination, (B) a third party commences, or announces an intention to commence, a tender or exchange offer, the consummation of which would constitute a Business Combination and (i) the board of directors (or a committee thereof) of Spark at any time recommends, or publicly discloses an intention to recommend, that Spark’s shareholders tender their shares into such tender or exchange offer (as it may have been amended), or (ii) the board of directors (or a committee thereof) of Spark does not, within ten business days from the date such offer is first published, sent or given to shareholders, recommend that Spark’s shareholders not tender their shares into such tender or exchange offer (as it may have been amended) or at any time thereafter changes its recommendation with respect to such tender or exchange offer (as it may have been amended) or takes any similar action that results in such board of directors no longer recommending that Spark’s shareholders not tender their shares into such tender or exchange offer, (C) any person or “group” (as such term is used under the Exchange Act) commences, or announces an intention to commence, any “solicitation” of “proxies” (as such terms are used under the Exchange Act) or consents with respect to the voting securities of Spark in which such person or group would, if successful, elect or acquire the ability to elect a majority of the members of the board of directors of Spark or result in a majority of the seats of the board of directors of Spark becoming vacant, or (D) with respect to any pending tender offer or exchange offer for shares of Spark, the consummation of which would constitute a Business Combination, Spark’s board of directors (or any committee thereof) no longer recommends that its shareholders tender their shares into such tender or exchange offer (as it may have been amended). The parties further acknowledge that Spark may enter into additional standstill agreements similar to the provision in this paragraph with third parties in connection with such third parties evaluating a possible transaction with Spark (“Other Standstill Agreement”), and the parties hereby agree that, to the extent that any such Other Standstill Agreement contains provisions that are more favorable to the third party than the provisions in this paragraph, this Agreement shall be deemed automatically amended to incorporate such more favorable terms as set forth in the Other Standstill Agreement. Following the expiration of the Restricted Period, no provision of this agreement shall restrict Company or its Affiliates, directly or indirectly, from taking any action described in this paragraph 7 (including using for the purpose of such action, but not otherwise disclosing any Confidential Information). For the avoidance of doubt, nothing in this paragraph 7 shall prevent the Company from entering into license, collaboration or other similar agreements in the ordinary course of business.
8. Passive Investments. The provisions of paragraph 7 shall not prohibit, Company or its Affiliates from owning and/or acquiring voting shares or other ownership interests in Spark provided that Company together with its Affiliates owns, in the aggregate, not more 5% of such voting securities. The provisions of paragraph 7 shall not prohibit passive investments by a pension or employee benefit plan or trust for Company’s or its Affiliates employees so long as such investments are directed by independent trustees, administrators or employees to whom no Confidential Information has been disclosed.
9. Term and Termination. This Agreement will terminate one (1) year after the Effective Date, or may be terminated by either party at any time upon thirty (30) days written notice to the other party. The receiving party’s obligations under this Agreement will survive termination or expiration of this Agreement for a period of five (5) years after the termination or expiration hereof and will be binding upon the receiving party’s heirs, successors and assigns after such termination or expiration; provided that the rights and obligations in Section 7 shall expire as set forth therein.
10. Notice. Any notice to be given hereunder by either party to the other will be in writing addressed to the address set forth in the opening paragraph above (unless either provides written notice of a different address) and will be deemed given: (a) upon delivery if sent by overnight courier; or (b) three (3) days after deposit in the mail if sent by pre-paid, certified mail, return receipt requested mail.
11. General. This Agreement constitutes the entire agreement between the parties with respect to the subject matter of this Agreement. This Agreement supersedes all previous agreements between the parties relating to the subject matter hereof. The headings to sections of this Agreement are inserted for convenience only and will not be deemed a part hereof or affect the construction or interpretation of any provision hereof. No provision of this Agreement will be deemed waived, amended or modified by either party, unless such waiver, amendment or modification is made in writing and signed by both parties. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware, without reference to conflict of laws principles. Any dispute under this Agreement may be brought in the state courts and the Federal courts located in the State of Delaware, and the parties hereby consent to the personal jurisdiction and venue of these courts. Each party acknowledges and agrees that money damages would not be a sufficient remedy for any breach (or threatened breach) of this Agreement by the receiving party or its Affiliates or representatives and that the disclosing party shall be entitled to equitable relief, including injunction and specific performance, as a remedy for any such breach (or threatened breach), without proof of damages, and each party further agrees to waive, and use its best efforts to cause its Affiliates and representatives to waive any requirement for the securing or posting of any bond in connection with any such remedy. Such remedies shall not be the exclusive remedies for a breach of this Agreement, but will be in addition to all other remedies available at law or in equity. If any provision of this Agreement is found by a proper authority to be unenforceable or invalid, such unenforceability or invalidity will not render this Agreement unenforceable or invalid as a whole, and such provision will be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or applicable court decisions. Neither party will assign or transfer any rights or obligations under this Agreement without the prior written consent of the other party, provided that a party may assign this Agreement to an Affiliate or successor without the consent of the other party in connection with a merger, reorganization, consolidation, change of control, sale of substantially all assets or similar transaction of the assigning party. Neither party will export, directly or indirectly, any technical data acquired from the other pursuant to this Agreement or any product utilizing any such data to any country for which the U.S. Government or any agency thereof at the time of export requires an export license or other governmental approval without first obtaining such license or approval. This Agreement may be executed in one (1) or more counterparts, each of which shall be an original and all of which together shall constitute one and the same document. Signatures delivered by facsimile, PDF or electronic mail shall be as effective as original signatures.
IN WITNESS WHEREOF, duly authorized representatives of the parties have executed this Mutual Non-Disclosure Agreement as of the Effective Date.
SPARK THERAPEUTICS, INC. ROCHE HOLDINGS INC.
By: /s/ Joseph W. LaBarge By: /s/ Bruce Resnick
Name: Joseph W. LaBarge Name: Bruce Resnick
Title: Chief Legal Officer Title: Vice President
| Not mentioned |
621_nda-7 | 621_nda-7_0 | Q: Receiving Party may share some Confidential Information with some third-parties (including consultants, agents and professional advisors).
Text: Exhibit 99.(d)(2)
MUTUAL NON-DISCLOSURE AGREEMENT
THIS MUTUAL NON-DISCLOSURE AGREEMENT (this “Agreement”), entered into as of October 9, 2018 (the “Effective Date”), governs the disclosure of information by and between Spark Therapeutics, Inc., a Delaware corporation, having an address at 3737 Market Street, Suite 1300, Philadelphia, PA (“Spark”), and Roche Holdings Inc, a Delaware company having an address at 1 DNA Way, South San Francisco, CA 94080 (“Company”). For purposes of this Agreement, references to each of Spark and Company, and corresponding references to disclosing party and receiving party herein, shall include the respective subsidiaries and other entities controlled, directly or indirectly by Spark or Company, as the case may be; provided, however, with respect to Company, the foregoing provision shall exclude Chugai Pharmaceutical Co., Ltd, 1-1 Nihonbashi-Muromachi 2-chome, Chuo-ku, Tokyo, 103-8324 (“Chugai”) unless the Company opts for such inclusion of Chugai and their respective subsidiaries by giving written notice to the Company.
1. Purpose. This Agreement is made in order for each party to disclose to the other, during the term of this Agreement, such scientific, technical, business and financial information as the disclosing party may elect to disclose so that the receiving party may use the same solely for the purpose of evaluating the Confidential Information internally in connection with evaluating a possible transaction between the parties relating to one, more or all of Spark’s gene therapy product candidates and/or assets (the “Purpose”) under terms that will protect the confidential and proprietary nature of such information.
2. Confidential Information. As used herein, “Confidential Information” will mean any and all scientific, technical, business and financial information, including third party information, that is furnished or disclosed, in whatever form or medium (regardless of whether tangible, intangible, visual, or oral), to the receiving party, before or after the Effective Date. “Confidential Information” includes but is not limited to: (a) patent and patent applications; (b) manufacturing, including process and know-how; (c) clinical trial design or results; (d) vendors; (e) trade secrets; and (f) other proprietary information, ideas, gene sequences, cell lines, samples, chemical compounds, assays, biological materials, techniques, sketches, drawings, works of authorship, models, inventions, know-how, processes, apparatuses, equipment, and formulae related to the current, future, and proposed products and services of each of the parties, and including without limitation, their respective information concerning research, experimental work, development, design details and specifications, engineering, financial information, procurement requirements, purchasing, manufacturing, customer lists, investors, employees, business and contractual relationships, business forecasts, analyst reports, sales and merchandising, marketing plans and any additional non-public information the disclosing party provides.
3. Obligations. Each receiving party agrees: (a) to use the disclosing party’s Confidential Information solely for the Purpose stated above and for no other reason; (b) to protect the confidentiality of the disclosing party’s Confidential Information; (c) not to disclose any of the disclosing party’s Confidential Information to anyone, except those employees, consultants or representatives of the receiving party or its Affiliates who have a “need to know” the information for the Purpose and who have signed confidentiality agreements or are otherwise bound by confidentiality and non-use obligations at least as restrictive as those contained herein; and (d) to notify appropriately such employees, consultants and representatives of the receiving party or its Affiliates that the disclosure is made in confidence and under the applicable confidentiality obligations. The receiving party agrees to be responsible for any breaches of any of the provisions of this Agreement by any of its employees, consultants or representatives. Each receiving party agrees that in the event permission is granted by the disclosing party to copy Confidential Information, each such copy will contain and state the same confidential or proprietary notices or legends, if any, that appear on the original.
4. Exceptions. The obligations and restrictions imposed by this Agreement will not apply to any Confidential Information that the receiving party can establish by competent evidence acceptable under applicable law and as deemed appropriate by the competent court: (a) is already known to the receiving party prior to the disclosing party’s disclosure; (b) is or becomes publicly available through no fault of the receiving party; (c) is obtained by the receiving party from a third party; or (d) is independently developed by the receiving party without use of or reference to any Confidential Information. Notwithstanding the foregoing, (i) any Confidential Information shall not be deemed to be within the foregoing exceptions merely because such information is embraced by more general information in the public domain or in the possession of the receiving party, and (ii) any combination of features shall not be deemed to be within the foregoing exceptions merely because individual features are in the public domain or in the possession of the receiving party, but only if the combination itself and its principle of operation are in the public domain or in the possession of the receiving party. Notwithstanding anything contained in this Agreement, other than in the case of an External Demand (as defined below), the receiving party may disclose either the fact that discussions or negotiations are taking place concerning the Purpose or any of the terms, conditions or other facts with respect to the Purpose, including the status thereof or that Confidential Information has been made available to the receiving party (such information, “Transaction Information”) if but only if (i) such disclosure is required under applicable securities or antitrust laws or under applicable stock exchange rules as determined based on advice of legal counsel and (ii) such disclosure requirement does not arise from a breach of this Agreement. In the event the receiving party receives a request or is required by deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process or pursuant to a formal request from a regulatory examiner (any such requested or required disclosure, an “External Demand”) to disclose all or any part of the Confidential Information of the disclosing party or the Transaction Information, the receiving party shall (1) immediately notify the disclosing party of the existence, terms and circumstances surrounding such External Demand, (2) consult with the disclosing party on the advisability of taking legally available steps to resist or narrow such request or disclosure, and (3) assist the disclosing party, at the disclosing party’s expense, in seeking a protective order or other appropriate remedy to the extent available under the circumstances. In the event that such protective order or other remedy is not obtained or that the disclosing party waives compliance with the provisions hereof, (x) the receiving party may disclose only that portion of the Confidential Information or Transaction Information which the receiving party is advised by counsel is legally required to be disclosed and to only those persons to whom the receiving party is advised by counsel are legally required to receive such information, and the receiving party shall exercise commercially reasonable efforts to obtain assurance that confidential treatment will be accorded such Confidential Information or Transaction Information, and (y) the receiving party shall not be liable for such disclosure, unless such disclosure was caused by or resulted from a previous disclosure by the receiving party not permitted by this Agreement.
5. Handling of Information and Materials. Confidential Information will not be reproduced in any form except as required to accomplish the Purpose of this Agreement. Any reproduction of any Confidential Information of the disclosing party will remain the property of the disclosing party and will contain and state any and all confidential or proprietary notices or legends that appear on the original, unless otherwise authorized in writing by the disclosing party. Upon termination or expiration of this Agreement, or upon written request of the disclosing party, each receiving party will promptly destroy (to the extent reasonably practicable in case of electronic files) or return to the other all documents and other tangible materials representing the disclosing party’s Confidential Information and all copies thereof. Notwithstanding the forgoing the receiving party may retain one copy of all Confidential Information in its legal department solely for archival and compliance purposes and its external advisors, if any, may keep one copy of their Confidential Information in accordance with the laws and professional standards applicable to them.
6. No Other Rights. The parties recognize and agree that nothing contained in this Agreement will be construed as granting any property rights, by license or otherwise, to any Confidential Information of the disclosing party disclosed pursuant to this Agreement, or to any invention or any patent, copyright, trademark, or other intellectual property right that has issued or that may issue, based on such Confidential Information. Each receiving party will not make, have made, use or sell for any purpose any product or other item using, incorporating or derived from any Confidential Information of the disclosing party.
7. Standstill. Company hereby acknowledges that, unless otherwise agreed in writing by Spark, for a period of twelve (12) months from the date of this Agreement (the “Restricted Period”) none of Company, nor any of its Affiliates (as defined in Rule 12b-2 under the Securities Exchange Act of 1934, as amended) who are provided with Confidential Information or become aware of Company’s discussions with Spark, will: (a) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of Spark’s assets or businesses, or similar transactions involving Spark or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to Spark; (b) (i) acquire beneficial ownership of any voting securities (including in derivative form) of Spark (collectively, a transaction specified in (a)(i), (a)(ii) and (b)(i) involving a majority of Spark’s outstanding voting securities or consolidated assets, is referred to as a “Business Combination”), (ii) propose or seek, whether alone or in concert with others, any “solicitation” (as such term is used in the rules of the Securities and Exchange Commission) of proxies or consents to vote any securities (including in derivative form) of Spark, (iii) nominate any person as a director of Spark, or (iv) propose any matter to be voted upon by the stockholders of Spark; (c) directly or indirectly, form, join or in any way participate in a third party “group” (as such term is used in the rules of the Securities and Exchange Commission) (or discuss with any third party the potential formation of a group) with respect to any voting securities (including in derivative form) of Spark or a Business Combination involving Spark; (d) request Spark (or any of its officers, directors or representatives), directly or indirectly, to amend or waive any provision of this paragraph (including this sentence) in a way which would require Spark to publicly disclose the same; or (d) take any action that could require Spark to make a public announcement regarding a potential Business Combination; provided, however, that nothing in this paragraph shall prohibit Company from make a confidential proposal to Spark or Spark’s Chairman of the Board of Directors for a transaction involving a Business Combination at any time for a transaction involving a Business Combination. Notwithstanding the foregoing provisions of this paragraph to the contrary, the foregoing restrictions set forth in this paragraph shall immediately and automatically terminate and cease to apply with respect to Company and its Affiliates without any further action in the event that (A) Spark’s board of directors (or a committee thereof) approves, or Spark enters into a definitive agreement providing for, a Business Combination, (B) a third party commences, or announces an intention to commence, a tender or exchange offer, the consummation of which would constitute a Business Combination and (i) the board of directors (or a committee thereof) of Spark at any time recommends, or publicly discloses an intention to recommend, that Spark’s shareholders tender their shares into such tender or exchange offer (as it may have been amended), or (ii) the board of directors (or a committee thereof) of Spark does not, within ten business days from the date such offer is first published, sent or given to shareholders, recommend that Spark’s shareholders not tender their shares into such tender or exchange offer (as it may have been amended) or at any time thereafter changes its recommendation with respect to such tender or exchange offer (as it may have been amended) or takes any similar action that results in such board of directors no longer recommending that Spark’s shareholders not tender their shares into such tender or exchange offer, (C) any person or “group” (as such term is used under the Exchange Act) commences, or announces an intention to commence, any “solicitation” of “proxies” (as such terms are used under the Exchange Act) or consents with respect to the voting securities of Spark in which such person or group would, if successful, elect or acquire the ability to elect a majority of the members of the board of directors of Spark or result in a majority of the seats of the board of directors of Spark becoming vacant, or (D) with respect to any pending tender offer or exchange offer for shares of Spark, the consummation of which would constitute a Business Combination, Spark’s board of directors (or any committee thereof) no longer recommends that its shareholders tender their shares into such tender or exchange offer (as it may have been amended). The parties further acknowledge that Spark may enter into additional standstill agreements similar to the provision in this paragraph with third parties in connection with such third parties evaluating a possible transaction with Spark (“Other Standstill Agreement”), and the parties hereby agree that, to the extent that any such Other Standstill Agreement contains provisions that are more favorable to the third party than the provisions in this paragraph, this Agreement shall be deemed automatically amended to incorporate such more favorable terms as set forth in the Other Standstill Agreement. Following the expiration of the Restricted Period, no provision of this agreement shall restrict Company or its Affiliates, directly or indirectly, from taking any action described in this paragraph 7 (including using for the purpose of such action, but not otherwise disclosing any Confidential Information). For the avoidance of doubt, nothing in this paragraph 7 shall prevent the Company from entering into license, collaboration or other similar agreements in the ordinary course of business.
8. Passive Investments. The provisions of paragraph 7 shall not prohibit, Company or its Affiliates from owning and/or acquiring voting shares or other ownership interests in Spark provided that Company together with its Affiliates owns, in the aggregate, not more 5% of such voting securities. The provisions of paragraph 7 shall not prohibit passive investments by a pension or employee benefit plan or trust for Company’s or its Affiliates employees so long as such investments are directed by independent trustees, administrators or employees to whom no Confidential Information has been disclosed.
9. Term and Termination. This Agreement will terminate one (1) year after the Effective Date, or may be terminated by either party at any time upon thirty (30) days written notice to the other party. The receiving party’s obligations under this Agreement will survive termination or expiration of this Agreement for a period of five (5) years after the termination or expiration hereof and will be binding upon the receiving party’s heirs, successors and assigns after such termination or expiration; provided that the rights and obligations in Section 7 shall expire as set forth therein.
10. Notice. Any notice to be given hereunder by either party to the other will be in writing addressed to the address set forth in the opening paragraph above (unless either provides written notice of a different address) and will be deemed given: (a) upon delivery if sent by overnight courier; or (b) three (3) days after deposit in the mail if sent by pre-paid, certified mail, return receipt requested mail.
11. General. This Agreement constitutes the entire agreement between the parties with respect to the subject matter of this Agreement. This Agreement supersedes all previous agreements between the parties relating to the subject matter hereof. The headings to sections of this Agreement are inserted for convenience only and will not be deemed a part hereof or affect the construction or interpretation of any provision hereof. No provision of this Agreement will be deemed waived, amended or modified by either party, unless such waiver, amendment or modification is made in writing and signed by both parties. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware, without reference to conflict of laws principles. Any dispute under this Agreement may be brought in the state courts and the Federal courts located in the State of Delaware, and the parties hereby consent to the personal jurisdiction and venue of these courts. Each party acknowledges and agrees that money damages would not be a sufficient remedy for any breach (or threatened breach) of this Agreement by the receiving party or its Affiliates or representatives and that the disclosing party shall be entitled to equitable relief, including injunction and specific performance, as a remedy for any such breach (or threatened breach), without proof of damages, and each party further agrees to waive, and use its best efforts to cause its Affiliates and representatives to waive any requirement for the securing or posting of any bond in connection with any such remedy. Such remedies shall not be the exclusive remedies for a breach of this Agreement, but will be in addition to all other remedies available at law or in equity. If any provision of this Agreement is found by a proper authority to be unenforceable or invalid, such unenforceability or invalidity will not render this Agreement unenforceable or invalid as a whole, and such provision will be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or applicable court decisions. Neither party will assign or transfer any rights or obligations under this Agreement without the prior written consent of the other party, provided that a party may assign this Agreement to an Affiliate or successor without the consent of the other party in connection with a merger, reorganization, consolidation, change of control, sale of substantially all assets or similar transaction of the assigning party. Neither party will export, directly or indirectly, any technical data acquired from the other pursuant to this Agreement or any product utilizing any such data to any country for which the U.S. Government or any agency thereof at the time of export requires an export license or other governmental approval without first obtaining such license or approval. This Agreement may be executed in one (1) or more counterparts, each of which shall be an original and all of which together shall constitute one and the same document. Signatures delivered by facsimile, PDF or electronic mail shall be as effective as original signatures.
IN WITNESS WHEREOF, duly authorized representatives of the parties have executed this Mutual Non-Disclosure Agreement as of the Effective Date.
SPARK THERAPEUTICS, INC. ROCHE HOLDINGS INC.
By: /s/ Joseph W. LaBarge By: /s/ Bruce Resnick
Name: Joseph W. LaBarge Name: Bruce Resnick
Title: Chief Legal Officer Title: Vice President
| Entailment |
621_nda-17 | 621_nda-17_0 | Q: Receiving Party may create a copy of some Confidential Information in some circumstances.
Text: Exhibit 99.(d)(2)
MUTUAL NON-DISCLOSURE AGREEMENT
THIS MUTUAL NON-DISCLOSURE AGREEMENT (this “Agreement”), entered into as of October 9, 2018 (the “Effective Date”), governs the disclosure of information by and between Spark Therapeutics, Inc., a Delaware corporation, having an address at 3737 Market Street, Suite 1300, Philadelphia, PA (“Spark”), and Roche Holdings Inc, a Delaware company having an address at 1 DNA Way, South San Francisco, CA 94080 (“Company”). For purposes of this Agreement, references to each of Spark and Company, and corresponding references to disclosing party and receiving party herein, shall include the respective subsidiaries and other entities controlled, directly or indirectly by Spark or Company, as the case may be; provided, however, with respect to Company, the foregoing provision shall exclude Chugai Pharmaceutical Co., Ltd, 1-1 Nihonbashi-Muromachi 2-chome, Chuo-ku, Tokyo, 103-8324 (“Chugai”) unless the Company opts for such inclusion of Chugai and their respective subsidiaries by giving written notice to the Company.
1. Purpose. This Agreement is made in order for each party to disclose to the other, during the term of this Agreement, such scientific, technical, business and financial information as the disclosing party may elect to disclose so that the receiving party may use the same solely for the purpose of evaluating the Confidential Information internally in connection with evaluating a possible transaction between the parties relating to one, more or all of Spark’s gene therapy product candidates and/or assets (the “Purpose”) under terms that will protect the confidential and proprietary nature of such information.
2. Confidential Information. As used herein, “Confidential Information” will mean any and all scientific, technical, business and financial information, including third party information, that is furnished or disclosed, in whatever form or medium (regardless of whether tangible, intangible, visual, or oral), to the receiving party, before or after the Effective Date. “Confidential Information” includes but is not limited to: (a) patent and patent applications; (b) manufacturing, including process and know-how; (c) clinical trial design or results; (d) vendors; (e) trade secrets; and (f) other proprietary information, ideas, gene sequences, cell lines, samples, chemical compounds, assays, biological materials, techniques, sketches, drawings, works of authorship, models, inventions, know-how, processes, apparatuses, equipment, and formulae related to the current, future, and proposed products and services of each of the parties, and including without limitation, their respective information concerning research, experimental work, development, design details and specifications, engineering, financial information, procurement requirements, purchasing, manufacturing, customer lists, investors, employees, business and contractual relationships, business forecasts, analyst reports, sales and merchandising, marketing plans and any additional non-public information the disclosing party provides.
3. Obligations. Each receiving party agrees: (a) to use the disclosing party’s Confidential Information solely for the Purpose stated above and for no other reason; (b) to protect the confidentiality of the disclosing party’s Confidential Information; (c) not to disclose any of the disclosing party’s Confidential Information to anyone, except those employees, consultants or representatives of the receiving party or its Affiliates who have a “need to know” the information for the Purpose and who have signed confidentiality agreements or are otherwise bound by confidentiality and non-use obligations at least as restrictive as those contained herein; and (d) to notify appropriately such employees, consultants and representatives of the receiving party or its Affiliates that the disclosure is made in confidence and under the applicable confidentiality obligations. The receiving party agrees to be responsible for any breaches of any of the provisions of this Agreement by any of its employees, consultants or representatives. Each receiving party agrees that in the event permission is granted by the disclosing party to copy Confidential Information, each such copy will contain and state the same confidential or proprietary notices or legends, if any, that appear on the original.
4. Exceptions. The obligations and restrictions imposed by this Agreement will not apply to any Confidential Information that the receiving party can establish by competent evidence acceptable under applicable law and as deemed appropriate by the competent court: (a) is already known to the receiving party prior to the disclosing party’s disclosure; (b) is or becomes publicly available through no fault of the receiving party; (c) is obtained by the receiving party from a third party; or (d) is independently developed by the receiving party without use of or reference to any Confidential Information. Notwithstanding the foregoing, (i) any Confidential Information shall not be deemed to be within the foregoing exceptions merely because such information is embraced by more general information in the public domain or in the possession of the receiving party, and (ii) any combination of features shall not be deemed to be within the foregoing exceptions merely because individual features are in the public domain or in the possession of the receiving party, but only if the combination itself and its principle of operation are in the public domain or in the possession of the receiving party. Notwithstanding anything contained in this Agreement, other than in the case of an External Demand (as defined below), the receiving party may disclose either the fact that discussions or negotiations are taking place concerning the Purpose or any of the terms, conditions or other facts with respect to the Purpose, including the status thereof or that Confidential Information has been made available to the receiving party (such information, “Transaction Information”) if but only if (i) such disclosure is required under applicable securities or antitrust laws or under applicable stock exchange rules as determined based on advice of legal counsel and (ii) such disclosure requirement does not arise from a breach of this Agreement. In the event the receiving party receives a request or is required by deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process or pursuant to a formal request from a regulatory examiner (any such requested or required disclosure, an “External Demand”) to disclose all or any part of the Confidential Information of the disclosing party or the Transaction Information, the receiving party shall (1) immediately notify the disclosing party of the existence, terms and circumstances surrounding such External Demand, (2) consult with the disclosing party on the advisability of taking legally available steps to resist or narrow such request or disclosure, and (3) assist the disclosing party, at the disclosing party’s expense, in seeking a protective order or other appropriate remedy to the extent available under the circumstances. In the event that such protective order or other remedy is not obtained or that the disclosing party waives compliance with the provisions hereof, (x) the receiving party may disclose only that portion of the Confidential Information or Transaction Information which the receiving party is advised by counsel is legally required to be disclosed and to only those persons to whom the receiving party is advised by counsel are legally required to receive such information, and the receiving party shall exercise commercially reasonable efforts to obtain assurance that confidential treatment will be accorded such Confidential Information or Transaction Information, and (y) the receiving party shall not be liable for such disclosure, unless such disclosure was caused by or resulted from a previous disclosure by the receiving party not permitted by this Agreement.
5. Handling of Information and Materials. Confidential Information will not be reproduced in any form except as required to accomplish the Purpose of this Agreement. Any reproduction of any Confidential Information of the disclosing party will remain the property of the disclosing party and will contain and state any and all confidential or proprietary notices or legends that appear on the original, unless otherwise authorized in writing by the disclosing party. Upon termination or expiration of this Agreement, or upon written request of the disclosing party, each receiving party will promptly destroy (to the extent reasonably practicable in case of electronic files) or return to the other all documents and other tangible materials representing the disclosing party’s Confidential Information and all copies thereof. Notwithstanding the forgoing the receiving party may retain one copy of all Confidential Information in its legal department solely for archival and compliance purposes and its external advisors, if any, may keep one copy of their Confidential Information in accordance with the laws and professional standards applicable to them.
6. No Other Rights. The parties recognize and agree that nothing contained in this Agreement will be construed as granting any property rights, by license or otherwise, to any Confidential Information of the disclosing party disclosed pursuant to this Agreement, or to any invention or any patent, copyright, trademark, or other intellectual property right that has issued or that may issue, based on such Confidential Information. Each receiving party will not make, have made, use or sell for any purpose any product or other item using, incorporating or derived from any Confidential Information of the disclosing party.
7. Standstill. Company hereby acknowledges that, unless otherwise agreed in writing by Spark, for a period of twelve (12) months from the date of this Agreement (the “Restricted Period”) none of Company, nor any of its Affiliates (as defined in Rule 12b-2 under the Securities Exchange Act of 1934, as amended) who are provided with Confidential Information or become aware of Company’s discussions with Spark, will: (a) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of Spark’s assets or businesses, or similar transactions involving Spark or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to Spark; (b) (i) acquire beneficial ownership of any voting securities (including in derivative form) of Spark (collectively, a transaction specified in (a)(i), (a)(ii) and (b)(i) involving a majority of Spark’s outstanding voting securities or consolidated assets, is referred to as a “Business Combination”), (ii) propose or seek, whether alone or in concert with others, any “solicitation” (as such term is used in the rules of the Securities and Exchange Commission) of proxies or consents to vote any securities (including in derivative form) of Spark, (iii) nominate any person as a director of Spark, or (iv) propose any matter to be voted upon by the stockholders of Spark; (c) directly or indirectly, form, join or in any way participate in a third party “group” (as such term is used in the rules of the Securities and Exchange Commission) (or discuss with any third party the potential formation of a group) with respect to any voting securities (including in derivative form) of Spark or a Business Combination involving Spark; (d) request Spark (or any of its officers, directors or representatives), directly or indirectly, to amend or waive any provision of this paragraph (including this sentence) in a way which would require Spark to publicly disclose the same; or (d) take any action that could require Spark to make a public announcement regarding a potential Business Combination; provided, however, that nothing in this paragraph shall prohibit Company from make a confidential proposal to Spark or Spark’s Chairman of the Board of Directors for a transaction involving a Business Combination at any time for a transaction involving a Business Combination. Notwithstanding the foregoing provisions of this paragraph to the contrary, the foregoing restrictions set forth in this paragraph shall immediately and automatically terminate and cease to apply with respect to Company and its Affiliates without any further action in the event that (A) Spark’s board of directors (or a committee thereof) approves, or Spark enters into a definitive agreement providing for, a Business Combination, (B) a third party commences, or announces an intention to commence, a tender or exchange offer, the consummation of which would constitute a Business Combination and (i) the board of directors (or a committee thereof) of Spark at any time recommends, or publicly discloses an intention to recommend, that Spark’s shareholders tender their shares into such tender or exchange offer (as it may have been amended), or (ii) the board of directors (or a committee thereof) of Spark does not, within ten business days from the date such offer is first published, sent or given to shareholders, recommend that Spark’s shareholders not tender their shares into such tender or exchange offer (as it may have been amended) or at any time thereafter changes its recommendation with respect to such tender or exchange offer (as it may have been amended) or takes any similar action that results in such board of directors no longer recommending that Spark’s shareholders not tender their shares into such tender or exchange offer, (C) any person or “group” (as such term is used under the Exchange Act) commences, or announces an intention to commence, any “solicitation” of “proxies” (as such terms are used under the Exchange Act) or consents with respect to the voting securities of Spark in which such person or group would, if successful, elect or acquire the ability to elect a majority of the members of the board of directors of Spark or result in a majority of the seats of the board of directors of Spark becoming vacant, or (D) with respect to any pending tender offer or exchange offer for shares of Spark, the consummation of which would constitute a Business Combination, Spark’s board of directors (or any committee thereof) no longer recommends that its shareholders tender their shares into such tender or exchange offer (as it may have been amended). The parties further acknowledge that Spark may enter into additional standstill agreements similar to the provision in this paragraph with third parties in connection with such third parties evaluating a possible transaction with Spark (“Other Standstill Agreement”), and the parties hereby agree that, to the extent that any such Other Standstill Agreement contains provisions that are more favorable to the third party than the provisions in this paragraph, this Agreement shall be deemed automatically amended to incorporate such more favorable terms as set forth in the Other Standstill Agreement. Following the expiration of the Restricted Period, no provision of this agreement shall restrict Company or its Affiliates, directly or indirectly, from taking any action described in this paragraph 7 (including using for the purpose of such action, but not otherwise disclosing any Confidential Information). For the avoidance of doubt, nothing in this paragraph 7 shall prevent the Company from entering into license, collaboration or other similar agreements in the ordinary course of business.
8. Passive Investments. The provisions of paragraph 7 shall not prohibit, Company or its Affiliates from owning and/or acquiring voting shares or other ownership interests in Spark provided that Company together with its Affiliates owns, in the aggregate, not more 5% of such voting securities. The provisions of paragraph 7 shall not prohibit passive investments by a pension or employee benefit plan or trust for Company’s or its Affiliates employees so long as such investments are directed by independent trustees, administrators or employees to whom no Confidential Information has been disclosed.
9. Term and Termination. This Agreement will terminate one (1) year after the Effective Date, or may be terminated by either party at any time upon thirty (30) days written notice to the other party. The receiving party’s obligations under this Agreement will survive termination or expiration of this Agreement for a period of five (5) years after the termination or expiration hereof and will be binding upon the receiving party’s heirs, successors and assigns after such termination or expiration; provided that the rights and obligations in Section 7 shall expire as set forth therein.
10. Notice. Any notice to be given hereunder by either party to the other will be in writing addressed to the address set forth in the opening paragraph above (unless either provides written notice of a different address) and will be deemed given: (a) upon delivery if sent by overnight courier; or (b) three (3) days after deposit in the mail if sent by pre-paid, certified mail, return receipt requested mail.
11. General. This Agreement constitutes the entire agreement between the parties with respect to the subject matter of this Agreement. This Agreement supersedes all previous agreements between the parties relating to the subject matter hereof. The headings to sections of this Agreement are inserted for convenience only and will not be deemed a part hereof or affect the construction or interpretation of any provision hereof. No provision of this Agreement will be deemed waived, amended or modified by either party, unless such waiver, amendment or modification is made in writing and signed by both parties. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware, without reference to conflict of laws principles. Any dispute under this Agreement may be brought in the state courts and the Federal courts located in the State of Delaware, and the parties hereby consent to the personal jurisdiction and venue of these courts. Each party acknowledges and agrees that money damages would not be a sufficient remedy for any breach (or threatened breach) of this Agreement by the receiving party or its Affiliates or representatives and that the disclosing party shall be entitled to equitable relief, including injunction and specific performance, as a remedy for any such breach (or threatened breach), without proof of damages, and each party further agrees to waive, and use its best efforts to cause its Affiliates and representatives to waive any requirement for the securing or posting of any bond in connection with any such remedy. Such remedies shall not be the exclusive remedies for a breach of this Agreement, but will be in addition to all other remedies available at law or in equity. If any provision of this Agreement is found by a proper authority to be unenforceable or invalid, such unenforceability or invalidity will not render this Agreement unenforceable or invalid as a whole, and such provision will be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or applicable court decisions. Neither party will assign or transfer any rights or obligations under this Agreement without the prior written consent of the other party, provided that a party may assign this Agreement to an Affiliate or successor without the consent of the other party in connection with a merger, reorganization, consolidation, change of control, sale of substantially all assets or similar transaction of the assigning party. Neither party will export, directly or indirectly, any technical data acquired from the other pursuant to this Agreement or any product utilizing any such data to any country for which the U.S. Government or any agency thereof at the time of export requires an export license or other governmental approval without first obtaining such license or approval. This Agreement may be executed in one (1) or more counterparts, each of which shall be an original and all of which together shall constitute one and the same document. Signatures delivered by facsimile, PDF or electronic mail shall be as effective as original signatures.
IN WITNESS WHEREOF, duly authorized representatives of the parties have executed this Mutual Non-Disclosure Agreement as of the Effective Date.
SPARK THERAPEUTICS, INC. ROCHE HOLDINGS INC.
By: /s/ Joseph W. LaBarge By: /s/ Bruce Resnick
Name: Joseph W. LaBarge Name: Bruce Resnick
Title: Chief Legal Officer Title: Vice President
| Entailment |
621_nda-8 | 621_nda-8_0 | Q: Receiving Party shall notify Disclosing Party in case Receiving Party is required by law, regulation or judicial process to disclose any Confidential Information.
Text: Exhibit 99.(d)(2)
MUTUAL NON-DISCLOSURE AGREEMENT
THIS MUTUAL NON-DISCLOSURE AGREEMENT (this “Agreement”), entered into as of October 9, 2018 (the “Effective Date”), governs the disclosure of information by and between Spark Therapeutics, Inc., a Delaware corporation, having an address at 3737 Market Street, Suite 1300, Philadelphia, PA (“Spark”), and Roche Holdings Inc, a Delaware company having an address at 1 DNA Way, South San Francisco, CA 94080 (“Company”). For purposes of this Agreement, references to each of Spark and Company, and corresponding references to disclosing party and receiving party herein, shall include the respective subsidiaries and other entities controlled, directly or indirectly by Spark or Company, as the case may be; provided, however, with respect to Company, the foregoing provision shall exclude Chugai Pharmaceutical Co., Ltd, 1-1 Nihonbashi-Muromachi 2-chome, Chuo-ku, Tokyo, 103-8324 (“Chugai”) unless the Company opts for such inclusion of Chugai and their respective subsidiaries by giving written notice to the Company.
1. Purpose. This Agreement is made in order for each party to disclose to the other, during the term of this Agreement, such scientific, technical, business and financial information as the disclosing party may elect to disclose so that the receiving party may use the same solely for the purpose of evaluating the Confidential Information internally in connection with evaluating a possible transaction between the parties relating to one, more or all of Spark’s gene therapy product candidates and/or assets (the “Purpose”) under terms that will protect the confidential and proprietary nature of such information.
2. Confidential Information. As used herein, “Confidential Information” will mean any and all scientific, technical, business and financial information, including third party information, that is furnished or disclosed, in whatever form or medium (regardless of whether tangible, intangible, visual, or oral), to the receiving party, before or after the Effective Date. “Confidential Information” includes but is not limited to: (a) patent and patent applications; (b) manufacturing, including process and know-how; (c) clinical trial design or results; (d) vendors; (e) trade secrets; and (f) other proprietary information, ideas, gene sequences, cell lines, samples, chemical compounds, assays, biological materials, techniques, sketches, drawings, works of authorship, models, inventions, know-how, processes, apparatuses, equipment, and formulae related to the current, future, and proposed products and services of each of the parties, and including without limitation, their respective information concerning research, experimental work, development, design details and specifications, engineering, financial information, procurement requirements, purchasing, manufacturing, customer lists, investors, employees, business and contractual relationships, business forecasts, analyst reports, sales and merchandising, marketing plans and any additional non-public information the disclosing party provides.
3. Obligations. Each receiving party agrees: (a) to use the disclosing party’s Confidential Information solely for the Purpose stated above and for no other reason; (b) to protect the confidentiality of the disclosing party’s Confidential Information; (c) not to disclose any of the disclosing party’s Confidential Information to anyone, except those employees, consultants or representatives of the receiving party or its Affiliates who have a “need to know” the information for the Purpose and who have signed confidentiality agreements or are otherwise bound by confidentiality and non-use obligations at least as restrictive as those contained herein; and (d) to notify appropriately such employees, consultants and representatives of the receiving party or its Affiliates that the disclosure is made in confidence and under the applicable confidentiality obligations. The receiving party agrees to be responsible for any breaches of any of the provisions of this Agreement by any of its employees, consultants or representatives. Each receiving party agrees that in the event permission is granted by the disclosing party to copy Confidential Information, each such copy will contain and state the same confidential or proprietary notices or legends, if any, that appear on the original.
4. Exceptions. The obligations and restrictions imposed by this Agreement will not apply to any Confidential Information that the receiving party can establish by competent evidence acceptable under applicable law and as deemed appropriate by the competent court: (a) is already known to the receiving party prior to the disclosing party’s disclosure; (b) is or becomes publicly available through no fault of the receiving party; (c) is obtained by the receiving party from a third party; or (d) is independently developed by the receiving party without use of or reference to any Confidential Information. Notwithstanding the foregoing, (i) any Confidential Information shall not be deemed to be within the foregoing exceptions merely because such information is embraced by more general information in the public domain or in the possession of the receiving party, and (ii) any combination of features shall not be deemed to be within the foregoing exceptions merely because individual features are in the public domain or in the possession of the receiving party, but only if the combination itself and its principle of operation are in the public domain or in the possession of the receiving party. Notwithstanding anything contained in this Agreement, other than in the case of an External Demand (as defined below), the receiving party may disclose either the fact that discussions or negotiations are taking place concerning the Purpose or any of the terms, conditions or other facts with respect to the Purpose, including the status thereof or that Confidential Information has been made available to the receiving party (such information, “Transaction Information”) if but only if (i) such disclosure is required under applicable securities or antitrust laws or under applicable stock exchange rules as determined based on advice of legal counsel and (ii) such disclosure requirement does not arise from a breach of this Agreement. In the event the receiving party receives a request or is required by deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process or pursuant to a formal request from a regulatory examiner (any such requested or required disclosure, an “External Demand”) to disclose all or any part of the Confidential Information of the disclosing party or the Transaction Information, the receiving party shall (1) immediately notify the disclosing party of the existence, terms and circumstances surrounding such External Demand, (2) consult with the disclosing party on the advisability of taking legally available steps to resist or narrow such request or disclosure, and (3) assist the disclosing party, at the disclosing party’s expense, in seeking a protective order or other appropriate remedy to the extent available under the circumstances. In the event that such protective order or other remedy is not obtained or that the disclosing party waives compliance with the provisions hereof, (x) the receiving party may disclose only that portion of the Confidential Information or Transaction Information which the receiving party is advised by counsel is legally required to be disclosed and to only those persons to whom the receiving party is advised by counsel are legally required to receive such information, and the receiving party shall exercise commercially reasonable efforts to obtain assurance that confidential treatment will be accorded such Confidential Information or Transaction Information, and (y) the receiving party shall not be liable for such disclosure, unless such disclosure was caused by or resulted from a previous disclosure by the receiving party not permitted by this Agreement.
5. Handling of Information and Materials. Confidential Information will not be reproduced in any form except as required to accomplish the Purpose of this Agreement. Any reproduction of any Confidential Information of the disclosing party will remain the property of the disclosing party and will contain and state any and all confidential or proprietary notices or legends that appear on the original, unless otherwise authorized in writing by the disclosing party. Upon termination or expiration of this Agreement, or upon written request of the disclosing party, each receiving party will promptly destroy (to the extent reasonably practicable in case of electronic files) or return to the other all documents and other tangible materials representing the disclosing party’s Confidential Information and all copies thereof. Notwithstanding the forgoing the receiving party may retain one copy of all Confidential Information in its legal department solely for archival and compliance purposes and its external advisors, if any, may keep one copy of their Confidential Information in accordance with the laws and professional standards applicable to them.
6. No Other Rights. The parties recognize and agree that nothing contained in this Agreement will be construed as granting any property rights, by license or otherwise, to any Confidential Information of the disclosing party disclosed pursuant to this Agreement, or to any invention or any patent, copyright, trademark, or other intellectual property right that has issued or that may issue, based on such Confidential Information. Each receiving party will not make, have made, use or sell for any purpose any product or other item using, incorporating or derived from any Confidential Information of the disclosing party.
7. Standstill. Company hereby acknowledges that, unless otherwise agreed in writing by Spark, for a period of twelve (12) months from the date of this Agreement (the “Restricted Period”) none of Company, nor any of its Affiliates (as defined in Rule 12b-2 under the Securities Exchange Act of 1934, as amended) who are provided with Confidential Information or become aware of Company’s discussions with Spark, will: (a) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of Spark’s assets or businesses, or similar transactions involving Spark or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to Spark; (b) (i) acquire beneficial ownership of any voting securities (including in derivative form) of Spark (collectively, a transaction specified in (a)(i), (a)(ii) and (b)(i) involving a majority of Spark’s outstanding voting securities or consolidated assets, is referred to as a “Business Combination”), (ii) propose or seek, whether alone or in concert with others, any “solicitation” (as such term is used in the rules of the Securities and Exchange Commission) of proxies or consents to vote any securities (including in derivative form) of Spark, (iii) nominate any person as a director of Spark, or (iv) propose any matter to be voted upon by the stockholders of Spark; (c) directly or indirectly, form, join or in any way participate in a third party “group” (as such term is used in the rules of the Securities and Exchange Commission) (or discuss with any third party the potential formation of a group) with respect to any voting securities (including in derivative form) of Spark or a Business Combination involving Spark; (d) request Spark (or any of its officers, directors or representatives), directly or indirectly, to amend or waive any provision of this paragraph (including this sentence) in a way which would require Spark to publicly disclose the same; or (d) take any action that could require Spark to make a public announcement regarding a potential Business Combination; provided, however, that nothing in this paragraph shall prohibit Company from make a confidential proposal to Spark or Spark’s Chairman of the Board of Directors for a transaction involving a Business Combination at any time for a transaction involving a Business Combination. Notwithstanding the foregoing provisions of this paragraph to the contrary, the foregoing restrictions set forth in this paragraph shall immediately and automatically terminate and cease to apply with respect to Company and its Affiliates without any further action in the event that (A) Spark’s board of directors (or a committee thereof) approves, or Spark enters into a definitive agreement providing for, a Business Combination, (B) a third party commences, or announces an intention to commence, a tender or exchange offer, the consummation of which would constitute a Business Combination and (i) the board of directors (or a committee thereof) of Spark at any time recommends, or publicly discloses an intention to recommend, that Spark’s shareholders tender their shares into such tender or exchange offer (as it may have been amended), or (ii) the board of directors (or a committee thereof) of Spark does not, within ten business days from the date such offer is first published, sent or given to shareholders, recommend that Spark’s shareholders not tender their shares into such tender or exchange offer (as it may have been amended) or at any time thereafter changes its recommendation with respect to such tender or exchange offer (as it may have been amended) or takes any similar action that results in such board of directors no longer recommending that Spark’s shareholders not tender their shares into such tender or exchange offer, (C) any person or “group” (as such term is used under the Exchange Act) commences, or announces an intention to commence, any “solicitation” of “proxies” (as such terms are used under the Exchange Act) or consents with respect to the voting securities of Spark in which such person or group would, if successful, elect or acquire the ability to elect a majority of the members of the board of directors of Spark or result in a majority of the seats of the board of directors of Spark becoming vacant, or (D) with respect to any pending tender offer or exchange offer for shares of Spark, the consummation of which would constitute a Business Combination, Spark’s board of directors (or any committee thereof) no longer recommends that its shareholders tender their shares into such tender or exchange offer (as it may have been amended). The parties further acknowledge that Spark may enter into additional standstill agreements similar to the provision in this paragraph with third parties in connection with such third parties evaluating a possible transaction with Spark (“Other Standstill Agreement”), and the parties hereby agree that, to the extent that any such Other Standstill Agreement contains provisions that are more favorable to the third party than the provisions in this paragraph, this Agreement shall be deemed automatically amended to incorporate such more favorable terms as set forth in the Other Standstill Agreement. Following the expiration of the Restricted Period, no provision of this agreement shall restrict Company or its Affiliates, directly or indirectly, from taking any action described in this paragraph 7 (including using for the purpose of such action, but not otherwise disclosing any Confidential Information). For the avoidance of doubt, nothing in this paragraph 7 shall prevent the Company from entering into license, collaboration or other similar agreements in the ordinary course of business.
8. Passive Investments. The provisions of paragraph 7 shall not prohibit, Company or its Affiliates from owning and/or acquiring voting shares or other ownership interests in Spark provided that Company together with its Affiliates owns, in the aggregate, not more 5% of such voting securities. The provisions of paragraph 7 shall not prohibit passive investments by a pension or employee benefit plan or trust for Company’s or its Affiliates employees so long as such investments are directed by independent trustees, administrators or employees to whom no Confidential Information has been disclosed.
9. Term and Termination. This Agreement will terminate one (1) year after the Effective Date, or may be terminated by either party at any time upon thirty (30) days written notice to the other party. The receiving party’s obligations under this Agreement will survive termination or expiration of this Agreement for a period of five (5) years after the termination or expiration hereof and will be binding upon the receiving party’s heirs, successors and assigns after such termination or expiration; provided that the rights and obligations in Section 7 shall expire as set forth therein.
10. Notice. Any notice to be given hereunder by either party to the other will be in writing addressed to the address set forth in the opening paragraph above (unless either provides written notice of a different address) and will be deemed given: (a) upon delivery if sent by overnight courier; or (b) three (3) days after deposit in the mail if sent by pre-paid, certified mail, return receipt requested mail.
11. General. This Agreement constitutes the entire agreement between the parties with respect to the subject matter of this Agreement. This Agreement supersedes all previous agreements between the parties relating to the subject matter hereof. The headings to sections of this Agreement are inserted for convenience only and will not be deemed a part hereof or affect the construction or interpretation of any provision hereof. No provision of this Agreement will be deemed waived, amended or modified by either party, unless such waiver, amendment or modification is made in writing and signed by both parties. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware, without reference to conflict of laws principles. Any dispute under this Agreement may be brought in the state courts and the Federal courts located in the State of Delaware, and the parties hereby consent to the personal jurisdiction and venue of these courts. Each party acknowledges and agrees that money damages would not be a sufficient remedy for any breach (or threatened breach) of this Agreement by the receiving party or its Affiliates or representatives and that the disclosing party shall be entitled to equitable relief, including injunction and specific performance, as a remedy for any such breach (or threatened breach), without proof of damages, and each party further agrees to waive, and use its best efforts to cause its Affiliates and representatives to waive any requirement for the securing or posting of any bond in connection with any such remedy. Such remedies shall not be the exclusive remedies for a breach of this Agreement, but will be in addition to all other remedies available at law or in equity. If any provision of this Agreement is found by a proper authority to be unenforceable or invalid, such unenforceability or invalidity will not render this Agreement unenforceable or invalid as a whole, and such provision will be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or applicable court decisions. Neither party will assign or transfer any rights or obligations under this Agreement without the prior written consent of the other party, provided that a party may assign this Agreement to an Affiliate or successor without the consent of the other party in connection with a merger, reorganization, consolidation, change of control, sale of substantially all assets or similar transaction of the assigning party. Neither party will export, directly or indirectly, any technical data acquired from the other pursuant to this Agreement or any product utilizing any such data to any country for which the U.S. Government or any agency thereof at the time of export requires an export license or other governmental approval without first obtaining such license or approval. This Agreement may be executed in one (1) or more counterparts, each of which shall be an original and all of which together shall constitute one and the same document. Signatures delivered by facsimile, PDF or electronic mail shall be as effective as original signatures.
IN WITNESS WHEREOF, duly authorized representatives of the parties have executed this Mutual Non-Disclosure Agreement as of the Effective Date.
SPARK THERAPEUTICS, INC. ROCHE HOLDINGS INC.
By: /s/ Joseph W. LaBarge By: /s/ Bruce Resnick
Name: Joseph W. LaBarge Name: Bruce Resnick
Title: Chief Legal Officer Title: Vice President
| Entailment |
621_nda-13 | 621_nda-13_0 | Q: Receiving Party may acquire information similar to Confidential Information from a third party.
Text: Exhibit 99.(d)(2)
MUTUAL NON-DISCLOSURE AGREEMENT
THIS MUTUAL NON-DISCLOSURE AGREEMENT (this “Agreement”), entered into as of October 9, 2018 (the “Effective Date”), governs the disclosure of information by and between Spark Therapeutics, Inc., a Delaware corporation, having an address at 3737 Market Street, Suite 1300, Philadelphia, PA (“Spark”), and Roche Holdings Inc, a Delaware company having an address at 1 DNA Way, South San Francisco, CA 94080 (“Company”). For purposes of this Agreement, references to each of Spark and Company, and corresponding references to disclosing party and receiving party herein, shall include the respective subsidiaries and other entities controlled, directly or indirectly by Spark or Company, as the case may be; provided, however, with respect to Company, the foregoing provision shall exclude Chugai Pharmaceutical Co., Ltd, 1-1 Nihonbashi-Muromachi 2-chome, Chuo-ku, Tokyo, 103-8324 (“Chugai”) unless the Company opts for such inclusion of Chugai and their respective subsidiaries by giving written notice to the Company.
1. Purpose. This Agreement is made in order for each party to disclose to the other, during the term of this Agreement, such scientific, technical, business and financial information as the disclosing party may elect to disclose so that the receiving party may use the same solely for the purpose of evaluating the Confidential Information internally in connection with evaluating a possible transaction between the parties relating to one, more or all of Spark’s gene therapy product candidates and/or assets (the “Purpose”) under terms that will protect the confidential and proprietary nature of such information.
2. Confidential Information. As used herein, “Confidential Information” will mean any and all scientific, technical, business and financial information, including third party information, that is furnished or disclosed, in whatever form or medium (regardless of whether tangible, intangible, visual, or oral), to the receiving party, before or after the Effective Date. “Confidential Information” includes but is not limited to: (a) patent and patent applications; (b) manufacturing, including process and know-how; (c) clinical trial design or results; (d) vendors; (e) trade secrets; and (f) other proprietary information, ideas, gene sequences, cell lines, samples, chemical compounds, assays, biological materials, techniques, sketches, drawings, works of authorship, models, inventions, know-how, processes, apparatuses, equipment, and formulae related to the current, future, and proposed products and services of each of the parties, and including without limitation, their respective information concerning research, experimental work, development, design details and specifications, engineering, financial information, procurement requirements, purchasing, manufacturing, customer lists, investors, employees, business and contractual relationships, business forecasts, analyst reports, sales and merchandising, marketing plans and any additional non-public information the disclosing party provides.
3. Obligations. Each receiving party agrees: (a) to use the disclosing party’s Confidential Information solely for the Purpose stated above and for no other reason; (b) to protect the confidentiality of the disclosing party’s Confidential Information; (c) not to disclose any of the disclosing party’s Confidential Information to anyone, except those employees, consultants or representatives of the receiving party or its Affiliates who have a “need to know” the information for the Purpose and who have signed confidentiality agreements or are otherwise bound by confidentiality and non-use obligations at least as restrictive as those contained herein; and (d) to notify appropriately such employees, consultants and representatives of the receiving party or its Affiliates that the disclosure is made in confidence and under the applicable confidentiality obligations. The receiving party agrees to be responsible for any breaches of any of the provisions of this Agreement by any of its employees, consultants or representatives. Each receiving party agrees that in the event permission is granted by the disclosing party to copy Confidential Information, each such copy will contain and state the same confidential or proprietary notices or legends, if any, that appear on the original.
4. Exceptions. The obligations and restrictions imposed by this Agreement will not apply to any Confidential Information that the receiving party can establish by competent evidence acceptable under applicable law and as deemed appropriate by the competent court: (a) is already known to the receiving party prior to the disclosing party’s disclosure; (b) is or becomes publicly available through no fault of the receiving party; (c) is obtained by the receiving party from a third party; or (d) is independently developed by the receiving party without use of or reference to any Confidential Information. Notwithstanding the foregoing, (i) any Confidential Information shall not be deemed to be within the foregoing exceptions merely because such information is embraced by more general information in the public domain or in the possession of the receiving party, and (ii) any combination of features shall not be deemed to be within the foregoing exceptions merely because individual features are in the public domain or in the possession of the receiving party, but only if the combination itself and its principle of operation are in the public domain or in the possession of the receiving party. Notwithstanding anything contained in this Agreement, other than in the case of an External Demand (as defined below), the receiving party may disclose either the fact that discussions or negotiations are taking place concerning the Purpose or any of the terms, conditions or other facts with respect to the Purpose, including the status thereof or that Confidential Information has been made available to the receiving party (such information, “Transaction Information”) if but only if (i) such disclosure is required under applicable securities or antitrust laws or under applicable stock exchange rules as determined based on advice of legal counsel and (ii) such disclosure requirement does not arise from a breach of this Agreement. In the event the receiving party receives a request or is required by deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process or pursuant to a formal request from a regulatory examiner (any such requested or required disclosure, an “External Demand”) to disclose all or any part of the Confidential Information of the disclosing party or the Transaction Information, the receiving party shall (1) immediately notify the disclosing party of the existence, terms and circumstances surrounding such External Demand, (2) consult with the disclosing party on the advisability of taking legally available steps to resist or narrow such request or disclosure, and (3) assist the disclosing party, at the disclosing party’s expense, in seeking a protective order or other appropriate remedy to the extent available under the circumstances. In the event that such protective order or other remedy is not obtained or that the disclosing party waives compliance with the provisions hereof, (x) the receiving party may disclose only that portion of the Confidential Information or Transaction Information which the receiving party is advised by counsel is legally required to be disclosed and to only those persons to whom the receiving party is advised by counsel are legally required to receive such information, and the receiving party shall exercise commercially reasonable efforts to obtain assurance that confidential treatment will be accorded such Confidential Information or Transaction Information, and (y) the receiving party shall not be liable for such disclosure, unless such disclosure was caused by or resulted from a previous disclosure by the receiving party not permitted by this Agreement.
5. Handling of Information and Materials. Confidential Information will not be reproduced in any form except as required to accomplish the Purpose of this Agreement. Any reproduction of any Confidential Information of the disclosing party will remain the property of the disclosing party and will contain and state any and all confidential or proprietary notices or legends that appear on the original, unless otherwise authorized in writing by the disclosing party. Upon termination or expiration of this Agreement, or upon written request of the disclosing party, each receiving party will promptly destroy (to the extent reasonably practicable in case of electronic files) or return to the other all documents and other tangible materials representing the disclosing party’s Confidential Information and all copies thereof. Notwithstanding the forgoing the receiving party may retain one copy of all Confidential Information in its legal department solely for archival and compliance purposes and its external advisors, if any, may keep one copy of their Confidential Information in accordance with the laws and professional standards applicable to them.
6. No Other Rights. The parties recognize and agree that nothing contained in this Agreement will be construed as granting any property rights, by license or otherwise, to any Confidential Information of the disclosing party disclosed pursuant to this Agreement, or to any invention or any patent, copyright, trademark, or other intellectual property right that has issued or that may issue, based on such Confidential Information. Each receiving party will not make, have made, use or sell for any purpose any product or other item using, incorporating or derived from any Confidential Information of the disclosing party.
7. Standstill. Company hereby acknowledges that, unless otherwise agreed in writing by Spark, for a period of twelve (12) months from the date of this Agreement (the “Restricted Period”) none of Company, nor any of its Affiliates (as defined in Rule 12b-2 under the Securities Exchange Act of 1934, as amended) who are provided with Confidential Information or become aware of Company’s discussions with Spark, will: (a) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of Spark’s assets or businesses, or similar transactions involving Spark or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to Spark; (b) (i) acquire beneficial ownership of any voting securities (including in derivative form) of Spark (collectively, a transaction specified in (a)(i), (a)(ii) and (b)(i) involving a majority of Spark’s outstanding voting securities or consolidated assets, is referred to as a “Business Combination”), (ii) propose or seek, whether alone or in concert with others, any “solicitation” (as such term is used in the rules of the Securities and Exchange Commission) of proxies or consents to vote any securities (including in derivative form) of Spark, (iii) nominate any person as a director of Spark, or (iv) propose any matter to be voted upon by the stockholders of Spark; (c) directly or indirectly, form, join or in any way participate in a third party “group” (as such term is used in the rules of the Securities and Exchange Commission) (or discuss with any third party the potential formation of a group) with respect to any voting securities (including in derivative form) of Spark or a Business Combination involving Spark; (d) request Spark (or any of its officers, directors or representatives), directly or indirectly, to amend or waive any provision of this paragraph (including this sentence) in a way which would require Spark to publicly disclose the same; or (d) take any action that could require Spark to make a public announcement regarding a potential Business Combination; provided, however, that nothing in this paragraph shall prohibit Company from make a confidential proposal to Spark or Spark’s Chairman of the Board of Directors for a transaction involving a Business Combination at any time for a transaction involving a Business Combination. Notwithstanding the foregoing provisions of this paragraph to the contrary, the foregoing restrictions set forth in this paragraph shall immediately and automatically terminate and cease to apply with respect to Company and its Affiliates without any further action in the event that (A) Spark’s board of directors (or a committee thereof) approves, or Spark enters into a definitive agreement providing for, a Business Combination, (B) a third party commences, or announces an intention to commence, a tender or exchange offer, the consummation of which would constitute a Business Combination and (i) the board of directors (or a committee thereof) of Spark at any time recommends, or publicly discloses an intention to recommend, that Spark’s shareholders tender their shares into such tender or exchange offer (as it may have been amended), or (ii) the board of directors (or a committee thereof) of Spark does not, within ten business days from the date such offer is first published, sent or given to shareholders, recommend that Spark’s shareholders not tender their shares into such tender or exchange offer (as it may have been amended) or at any time thereafter changes its recommendation with respect to such tender or exchange offer (as it may have been amended) or takes any similar action that results in such board of directors no longer recommending that Spark’s shareholders not tender their shares into such tender or exchange offer, (C) any person or “group” (as such term is used under the Exchange Act) commences, or announces an intention to commence, any “solicitation” of “proxies” (as such terms are used under the Exchange Act) or consents with respect to the voting securities of Spark in which such person or group would, if successful, elect or acquire the ability to elect a majority of the members of the board of directors of Spark or result in a majority of the seats of the board of directors of Spark becoming vacant, or (D) with respect to any pending tender offer or exchange offer for shares of Spark, the consummation of which would constitute a Business Combination, Spark’s board of directors (or any committee thereof) no longer recommends that its shareholders tender their shares into such tender or exchange offer (as it may have been amended). The parties further acknowledge that Spark may enter into additional standstill agreements similar to the provision in this paragraph with third parties in connection with such third parties evaluating a possible transaction with Spark (“Other Standstill Agreement”), and the parties hereby agree that, to the extent that any such Other Standstill Agreement contains provisions that are more favorable to the third party than the provisions in this paragraph, this Agreement shall be deemed automatically amended to incorporate such more favorable terms as set forth in the Other Standstill Agreement. Following the expiration of the Restricted Period, no provision of this agreement shall restrict Company or its Affiliates, directly or indirectly, from taking any action described in this paragraph 7 (including using for the purpose of such action, but not otherwise disclosing any Confidential Information). For the avoidance of doubt, nothing in this paragraph 7 shall prevent the Company from entering into license, collaboration or other similar agreements in the ordinary course of business.
8. Passive Investments. The provisions of paragraph 7 shall not prohibit, Company or its Affiliates from owning and/or acquiring voting shares or other ownership interests in Spark provided that Company together with its Affiliates owns, in the aggregate, not more 5% of such voting securities. The provisions of paragraph 7 shall not prohibit passive investments by a pension or employee benefit plan or trust for Company’s or its Affiliates employees so long as such investments are directed by independent trustees, administrators or employees to whom no Confidential Information has been disclosed.
9. Term and Termination. This Agreement will terminate one (1) year after the Effective Date, or may be terminated by either party at any time upon thirty (30) days written notice to the other party. The receiving party’s obligations under this Agreement will survive termination or expiration of this Agreement for a period of five (5) years after the termination or expiration hereof and will be binding upon the receiving party’s heirs, successors and assigns after such termination or expiration; provided that the rights and obligations in Section 7 shall expire as set forth therein.
10. Notice. Any notice to be given hereunder by either party to the other will be in writing addressed to the address set forth in the opening paragraph above (unless either provides written notice of a different address) and will be deemed given: (a) upon delivery if sent by overnight courier; or (b) three (3) days after deposit in the mail if sent by pre-paid, certified mail, return receipt requested mail.
11. General. This Agreement constitutes the entire agreement between the parties with respect to the subject matter of this Agreement. This Agreement supersedes all previous agreements between the parties relating to the subject matter hereof. The headings to sections of this Agreement are inserted for convenience only and will not be deemed a part hereof or affect the construction or interpretation of any provision hereof. No provision of this Agreement will be deemed waived, amended or modified by either party, unless such waiver, amendment or modification is made in writing and signed by both parties. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware, without reference to conflict of laws principles. Any dispute under this Agreement may be brought in the state courts and the Federal courts located in the State of Delaware, and the parties hereby consent to the personal jurisdiction and venue of these courts. Each party acknowledges and agrees that money damages would not be a sufficient remedy for any breach (or threatened breach) of this Agreement by the receiving party or its Affiliates or representatives and that the disclosing party shall be entitled to equitable relief, including injunction and specific performance, as a remedy for any such breach (or threatened breach), without proof of damages, and each party further agrees to waive, and use its best efforts to cause its Affiliates and representatives to waive any requirement for the securing or posting of any bond in connection with any such remedy. Such remedies shall not be the exclusive remedies for a breach of this Agreement, but will be in addition to all other remedies available at law or in equity. If any provision of this Agreement is found by a proper authority to be unenforceable or invalid, such unenforceability or invalidity will not render this Agreement unenforceable or invalid as a whole, and such provision will be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or applicable court decisions. Neither party will assign or transfer any rights or obligations under this Agreement without the prior written consent of the other party, provided that a party may assign this Agreement to an Affiliate or successor without the consent of the other party in connection with a merger, reorganization, consolidation, change of control, sale of substantially all assets or similar transaction of the assigning party. Neither party will export, directly or indirectly, any technical data acquired from the other pursuant to this Agreement or any product utilizing any such data to any country for which the U.S. Government or any agency thereof at the time of export requires an export license or other governmental approval without first obtaining such license or approval. This Agreement may be executed in one (1) or more counterparts, each of which shall be an original and all of which together shall constitute one and the same document. Signatures delivered by facsimile, PDF or electronic mail shall be as effective as original signatures.
IN WITNESS WHEREOF, duly authorized representatives of the parties have executed this Mutual Non-Disclosure Agreement as of the Effective Date.
SPARK THERAPEUTICS, INC. ROCHE HOLDINGS INC.
By: /s/ Joseph W. LaBarge By: /s/ Bruce Resnick
Name: Joseph W. LaBarge Name: Bruce Resnick
Title: Chief Legal Officer Title: Vice President
| Entailment |
621_nda-5 | 621_nda-5_0 | Q: Receiving Party may share some Confidential Information with some of Receiving Party's employees.
Text: Exhibit 99.(d)(2)
MUTUAL NON-DISCLOSURE AGREEMENT
THIS MUTUAL NON-DISCLOSURE AGREEMENT (this “Agreement”), entered into as of October 9, 2018 (the “Effective Date”), governs the disclosure of information by and between Spark Therapeutics, Inc., a Delaware corporation, having an address at 3737 Market Street, Suite 1300, Philadelphia, PA (“Spark”), and Roche Holdings Inc, a Delaware company having an address at 1 DNA Way, South San Francisco, CA 94080 (“Company”). For purposes of this Agreement, references to each of Spark and Company, and corresponding references to disclosing party and receiving party herein, shall include the respective subsidiaries and other entities controlled, directly or indirectly by Spark or Company, as the case may be; provided, however, with respect to Company, the foregoing provision shall exclude Chugai Pharmaceutical Co., Ltd, 1-1 Nihonbashi-Muromachi 2-chome, Chuo-ku, Tokyo, 103-8324 (“Chugai”) unless the Company opts for such inclusion of Chugai and their respective subsidiaries by giving written notice to the Company.
1. Purpose. This Agreement is made in order for each party to disclose to the other, during the term of this Agreement, such scientific, technical, business and financial information as the disclosing party may elect to disclose so that the receiving party may use the same solely for the purpose of evaluating the Confidential Information internally in connection with evaluating a possible transaction between the parties relating to one, more or all of Spark’s gene therapy product candidates and/or assets (the “Purpose”) under terms that will protect the confidential and proprietary nature of such information.
2. Confidential Information. As used herein, “Confidential Information” will mean any and all scientific, technical, business and financial information, including third party information, that is furnished or disclosed, in whatever form or medium (regardless of whether tangible, intangible, visual, or oral), to the receiving party, before or after the Effective Date. “Confidential Information” includes but is not limited to: (a) patent and patent applications; (b) manufacturing, including process and know-how; (c) clinical trial design or results; (d) vendors; (e) trade secrets; and (f) other proprietary information, ideas, gene sequences, cell lines, samples, chemical compounds, assays, biological materials, techniques, sketches, drawings, works of authorship, models, inventions, know-how, processes, apparatuses, equipment, and formulae related to the current, future, and proposed products and services of each of the parties, and including without limitation, their respective information concerning research, experimental work, development, design details and specifications, engineering, financial information, procurement requirements, purchasing, manufacturing, customer lists, investors, employees, business and contractual relationships, business forecasts, analyst reports, sales and merchandising, marketing plans and any additional non-public information the disclosing party provides.
3. Obligations. Each receiving party agrees: (a) to use the disclosing party’s Confidential Information solely for the Purpose stated above and for no other reason; (b) to protect the confidentiality of the disclosing party’s Confidential Information; (c) not to disclose any of the disclosing party’s Confidential Information to anyone, except those employees, consultants or representatives of the receiving party or its Affiliates who have a “need to know” the information for the Purpose and who have signed confidentiality agreements or are otherwise bound by confidentiality and non-use obligations at least as restrictive as those contained herein; and (d) to notify appropriately such employees, consultants and representatives of the receiving party or its Affiliates that the disclosure is made in confidence and under the applicable confidentiality obligations. The receiving party agrees to be responsible for any breaches of any of the provisions of this Agreement by any of its employees, consultants or representatives. Each receiving party agrees that in the event permission is granted by the disclosing party to copy Confidential Information, each such copy will contain and state the same confidential or proprietary notices or legends, if any, that appear on the original.
4. Exceptions. The obligations and restrictions imposed by this Agreement will not apply to any Confidential Information that the receiving party can establish by competent evidence acceptable under applicable law and as deemed appropriate by the competent court: (a) is already known to the receiving party prior to the disclosing party’s disclosure; (b) is or becomes publicly available through no fault of the receiving party; (c) is obtained by the receiving party from a third party; or (d) is independently developed by the receiving party without use of or reference to any Confidential Information. Notwithstanding the foregoing, (i) any Confidential Information shall not be deemed to be within the foregoing exceptions merely because such information is embraced by more general information in the public domain or in the possession of the receiving party, and (ii) any combination of features shall not be deemed to be within the foregoing exceptions merely because individual features are in the public domain or in the possession of the receiving party, but only if the combination itself and its principle of operation are in the public domain or in the possession of the receiving party. Notwithstanding anything contained in this Agreement, other than in the case of an External Demand (as defined below), the receiving party may disclose either the fact that discussions or negotiations are taking place concerning the Purpose or any of the terms, conditions or other facts with respect to the Purpose, including the status thereof or that Confidential Information has been made available to the receiving party (such information, “Transaction Information”) if but only if (i) such disclosure is required under applicable securities or antitrust laws or under applicable stock exchange rules as determined based on advice of legal counsel and (ii) such disclosure requirement does not arise from a breach of this Agreement. In the event the receiving party receives a request or is required by deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process or pursuant to a formal request from a regulatory examiner (any such requested or required disclosure, an “External Demand”) to disclose all or any part of the Confidential Information of the disclosing party or the Transaction Information, the receiving party shall (1) immediately notify the disclosing party of the existence, terms and circumstances surrounding such External Demand, (2) consult with the disclosing party on the advisability of taking legally available steps to resist or narrow such request or disclosure, and (3) assist the disclosing party, at the disclosing party’s expense, in seeking a protective order or other appropriate remedy to the extent available under the circumstances. In the event that such protective order or other remedy is not obtained or that the disclosing party waives compliance with the provisions hereof, (x) the receiving party may disclose only that portion of the Confidential Information or Transaction Information which the receiving party is advised by counsel is legally required to be disclosed and to only those persons to whom the receiving party is advised by counsel are legally required to receive such information, and the receiving party shall exercise commercially reasonable efforts to obtain assurance that confidential treatment will be accorded such Confidential Information or Transaction Information, and (y) the receiving party shall not be liable for such disclosure, unless such disclosure was caused by or resulted from a previous disclosure by the receiving party not permitted by this Agreement.
5. Handling of Information and Materials. Confidential Information will not be reproduced in any form except as required to accomplish the Purpose of this Agreement. Any reproduction of any Confidential Information of the disclosing party will remain the property of the disclosing party and will contain and state any and all confidential or proprietary notices or legends that appear on the original, unless otherwise authorized in writing by the disclosing party. Upon termination or expiration of this Agreement, or upon written request of the disclosing party, each receiving party will promptly destroy (to the extent reasonably practicable in case of electronic files) or return to the other all documents and other tangible materials representing the disclosing party’s Confidential Information and all copies thereof. Notwithstanding the forgoing the receiving party may retain one copy of all Confidential Information in its legal department solely for archival and compliance purposes and its external advisors, if any, may keep one copy of their Confidential Information in accordance with the laws and professional standards applicable to them.
6. No Other Rights. The parties recognize and agree that nothing contained in this Agreement will be construed as granting any property rights, by license or otherwise, to any Confidential Information of the disclosing party disclosed pursuant to this Agreement, or to any invention or any patent, copyright, trademark, or other intellectual property right that has issued or that may issue, based on such Confidential Information. Each receiving party will not make, have made, use or sell for any purpose any product or other item using, incorporating or derived from any Confidential Information of the disclosing party.
7. Standstill. Company hereby acknowledges that, unless otherwise agreed in writing by Spark, for a period of twelve (12) months from the date of this Agreement (the “Restricted Period”) none of Company, nor any of its Affiliates (as defined in Rule 12b-2 under the Securities Exchange Act of 1934, as amended) who are provided with Confidential Information or become aware of Company’s discussions with Spark, will: (a) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of Spark’s assets or businesses, or similar transactions involving Spark or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to Spark; (b) (i) acquire beneficial ownership of any voting securities (including in derivative form) of Spark (collectively, a transaction specified in (a)(i), (a)(ii) and (b)(i) involving a majority of Spark’s outstanding voting securities or consolidated assets, is referred to as a “Business Combination”), (ii) propose or seek, whether alone or in concert with others, any “solicitation” (as such term is used in the rules of the Securities and Exchange Commission) of proxies or consents to vote any securities (including in derivative form) of Spark, (iii) nominate any person as a director of Spark, or (iv) propose any matter to be voted upon by the stockholders of Spark; (c) directly or indirectly, form, join or in any way participate in a third party “group” (as such term is used in the rules of the Securities and Exchange Commission) (or discuss with any third party the potential formation of a group) with respect to any voting securities (including in derivative form) of Spark or a Business Combination involving Spark; (d) request Spark (or any of its officers, directors or representatives), directly or indirectly, to amend or waive any provision of this paragraph (including this sentence) in a way which would require Spark to publicly disclose the same; or (d) take any action that could require Spark to make a public announcement regarding a potential Business Combination; provided, however, that nothing in this paragraph shall prohibit Company from make a confidential proposal to Spark or Spark’s Chairman of the Board of Directors for a transaction involving a Business Combination at any time for a transaction involving a Business Combination. Notwithstanding the foregoing provisions of this paragraph to the contrary, the foregoing restrictions set forth in this paragraph shall immediately and automatically terminate and cease to apply with respect to Company and its Affiliates without any further action in the event that (A) Spark’s board of directors (or a committee thereof) approves, or Spark enters into a definitive agreement providing for, a Business Combination, (B) a third party commences, or announces an intention to commence, a tender or exchange offer, the consummation of which would constitute a Business Combination and (i) the board of directors (or a committee thereof) of Spark at any time recommends, or publicly discloses an intention to recommend, that Spark’s shareholders tender their shares into such tender or exchange offer (as it may have been amended), or (ii) the board of directors (or a committee thereof) of Spark does not, within ten business days from the date such offer is first published, sent or given to shareholders, recommend that Spark’s shareholders not tender their shares into such tender or exchange offer (as it may have been amended) or at any time thereafter changes its recommendation with respect to such tender or exchange offer (as it may have been amended) or takes any similar action that results in such board of directors no longer recommending that Spark’s shareholders not tender their shares into such tender or exchange offer, (C) any person or “group” (as such term is used under the Exchange Act) commences, or announces an intention to commence, any “solicitation” of “proxies” (as such terms are used under the Exchange Act) or consents with respect to the voting securities of Spark in which such person or group would, if successful, elect or acquire the ability to elect a majority of the members of the board of directors of Spark or result in a majority of the seats of the board of directors of Spark becoming vacant, or (D) with respect to any pending tender offer or exchange offer for shares of Spark, the consummation of which would constitute a Business Combination, Spark’s board of directors (or any committee thereof) no longer recommends that its shareholders tender their shares into such tender or exchange offer (as it may have been amended). The parties further acknowledge that Spark may enter into additional standstill agreements similar to the provision in this paragraph with third parties in connection with such third parties evaluating a possible transaction with Spark (“Other Standstill Agreement”), and the parties hereby agree that, to the extent that any such Other Standstill Agreement contains provisions that are more favorable to the third party than the provisions in this paragraph, this Agreement shall be deemed automatically amended to incorporate such more favorable terms as set forth in the Other Standstill Agreement. Following the expiration of the Restricted Period, no provision of this agreement shall restrict Company or its Affiliates, directly or indirectly, from taking any action described in this paragraph 7 (including using for the purpose of such action, but not otherwise disclosing any Confidential Information). For the avoidance of doubt, nothing in this paragraph 7 shall prevent the Company from entering into license, collaboration or other similar agreements in the ordinary course of business.
8. Passive Investments. The provisions of paragraph 7 shall not prohibit, Company or its Affiliates from owning and/or acquiring voting shares or other ownership interests in Spark provided that Company together with its Affiliates owns, in the aggregate, not more 5% of such voting securities. The provisions of paragraph 7 shall not prohibit passive investments by a pension or employee benefit plan or trust for Company’s or its Affiliates employees so long as such investments are directed by independent trustees, administrators or employees to whom no Confidential Information has been disclosed.
9. Term and Termination. This Agreement will terminate one (1) year after the Effective Date, or may be terminated by either party at any time upon thirty (30) days written notice to the other party. The receiving party’s obligations under this Agreement will survive termination or expiration of this Agreement for a period of five (5) years after the termination or expiration hereof and will be binding upon the receiving party’s heirs, successors and assigns after such termination or expiration; provided that the rights and obligations in Section 7 shall expire as set forth therein.
10. Notice. Any notice to be given hereunder by either party to the other will be in writing addressed to the address set forth in the opening paragraph above (unless either provides written notice of a different address) and will be deemed given: (a) upon delivery if sent by overnight courier; or (b) three (3) days after deposit in the mail if sent by pre-paid, certified mail, return receipt requested mail.
11. General. This Agreement constitutes the entire agreement between the parties with respect to the subject matter of this Agreement. This Agreement supersedes all previous agreements between the parties relating to the subject matter hereof. The headings to sections of this Agreement are inserted for convenience only and will not be deemed a part hereof or affect the construction or interpretation of any provision hereof. No provision of this Agreement will be deemed waived, amended or modified by either party, unless such waiver, amendment or modification is made in writing and signed by both parties. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware, without reference to conflict of laws principles. Any dispute under this Agreement may be brought in the state courts and the Federal courts located in the State of Delaware, and the parties hereby consent to the personal jurisdiction and venue of these courts. Each party acknowledges and agrees that money damages would not be a sufficient remedy for any breach (or threatened breach) of this Agreement by the receiving party or its Affiliates or representatives and that the disclosing party shall be entitled to equitable relief, including injunction and specific performance, as a remedy for any such breach (or threatened breach), without proof of damages, and each party further agrees to waive, and use its best efforts to cause its Affiliates and representatives to waive any requirement for the securing or posting of any bond in connection with any such remedy. Such remedies shall not be the exclusive remedies for a breach of this Agreement, but will be in addition to all other remedies available at law or in equity. If any provision of this Agreement is found by a proper authority to be unenforceable or invalid, such unenforceability or invalidity will not render this Agreement unenforceable or invalid as a whole, and such provision will be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or applicable court decisions. Neither party will assign or transfer any rights or obligations under this Agreement without the prior written consent of the other party, provided that a party may assign this Agreement to an Affiliate or successor without the consent of the other party in connection with a merger, reorganization, consolidation, change of control, sale of substantially all assets or similar transaction of the assigning party. Neither party will export, directly or indirectly, any technical data acquired from the other pursuant to this Agreement or any product utilizing any such data to any country for which the U.S. Government or any agency thereof at the time of export requires an export license or other governmental approval without first obtaining such license or approval. This Agreement may be executed in one (1) or more counterparts, each of which shall be an original and all of which together shall constitute one and the same document. Signatures delivered by facsimile, PDF or electronic mail shall be as effective as original signatures.
IN WITNESS WHEREOF, duly authorized representatives of the parties have executed this Mutual Non-Disclosure Agreement as of the Effective Date.
SPARK THERAPEUTICS, INC. ROCHE HOLDINGS INC.
By: /s/ Joseph W. LaBarge By: /s/ Bruce Resnick
Name: Joseph W. LaBarge Name: Bruce Resnick
Title: Chief Legal Officer Title: Vice President
| Entailment |
621_nda-4 | 621_nda-4_0 | Q: Receiving Party shall not use any Confidential Information for any purpose other than the purposes stated in Agreement.
Text: Exhibit 99.(d)(2)
MUTUAL NON-DISCLOSURE AGREEMENT
THIS MUTUAL NON-DISCLOSURE AGREEMENT (this “Agreement”), entered into as of October 9, 2018 (the “Effective Date”), governs the disclosure of information by and between Spark Therapeutics, Inc., a Delaware corporation, having an address at 3737 Market Street, Suite 1300, Philadelphia, PA (“Spark”), and Roche Holdings Inc, a Delaware company having an address at 1 DNA Way, South San Francisco, CA 94080 (“Company”). For purposes of this Agreement, references to each of Spark and Company, and corresponding references to disclosing party and receiving party herein, shall include the respective subsidiaries and other entities controlled, directly or indirectly by Spark or Company, as the case may be; provided, however, with respect to Company, the foregoing provision shall exclude Chugai Pharmaceutical Co., Ltd, 1-1 Nihonbashi-Muromachi 2-chome, Chuo-ku, Tokyo, 103-8324 (“Chugai”) unless the Company opts for such inclusion of Chugai and their respective subsidiaries by giving written notice to the Company.
1. Purpose. This Agreement is made in order for each party to disclose to the other, during the term of this Agreement, such scientific, technical, business and financial information as the disclosing party may elect to disclose so that the receiving party may use the same solely for the purpose of evaluating the Confidential Information internally in connection with evaluating a possible transaction between the parties relating to one, more or all of Spark’s gene therapy product candidates and/or assets (the “Purpose”) under terms that will protect the confidential and proprietary nature of such information.
2. Confidential Information. As used herein, “Confidential Information” will mean any and all scientific, technical, business and financial information, including third party information, that is furnished or disclosed, in whatever form or medium (regardless of whether tangible, intangible, visual, or oral), to the receiving party, before or after the Effective Date. “Confidential Information” includes but is not limited to: (a) patent and patent applications; (b) manufacturing, including process and know-how; (c) clinical trial design or results; (d) vendors; (e) trade secrets; and (f) other proprietary information, ideas, gene sequences, cell lines, samples, chemical compounds, assays, biological materials, techniques, sketches, drawings, works of authorship, models, inventions, know-how, processes, apparatuses, equipment, and formulae related to the current, future, and proposed products and services of each of the parties, and including without limitation, their respective information concerning research, experimental work, development, design details and specifications, engineering, financial information, procurement requirements, purchasing, manufacturing, customer lists, investors, employees, business and contractual relationships, business forecasts, analyst reports, sales and merchandising, marketing plans and any additional non-public information the disclosing party provides.
3. Obligations. Each receiving party agrees: (a) to use the disclosing party’s Confidential Information solely for the Purpose stated above and for no other reason; (b) to protect the confidentiality of the disclosing party’s Confidential Information; (c) not to disclose any of the disclosing party’s Confidential Information to anyone, except those employees, consultants or representatives of the receiving party or its Affiliates who have a “need to know” the information for the Purpose and who have signed confidentiality agreements or are otherwise bound by confidentiality and non-use obligations at least as restrictive as those contained herein; and (d) to notify appropriately such employees, consultants and representatives of the receiving party or its Affiliates that the disclosure is made in confidence and under the applicable confidentiality obligations. The receiving party agrees to be responsible for any breaches of any of the provisions of this Agreement by any of its employees, consultants or representatives. Each receiving party agrees that in the event permission is granted by the disclosing party to copy Confidential Information, each such copy will contain and state the same confidential or proprietary notices or legends, if any, that appear on the original.
4. Exceptions. The obligations and restrictions imposed by this Agreement will not apply to any Confidential Information that the receiving party can establish by competent evidence acceptable under applicable law and as deemed appropriate by the competent court: (a) is already known to the receiving party prior to the disclosing party’s disclosure; (b) is or becomes publicly available through no fault of the receiving party; (c) is obtained by the receiving party from a third party; or (d) is independently developed by the receiving party without use of or reference to any Confidential Information. Notwithstanding the foregoing, (i) any Confidential Information shall not be deemed to be within the foregoing exceptions merely because such information is embraced by more general information in the public domain or in the possession of the receiving party, and (ii) any combination of features shall not be deemed to be within the foregoing exceptions merely because individual features are in the public domain or in the possession of the receiving party, but only if the combination itself and its principle of operation are in the public domain or in the possession of the receiving party. Notwithstanding anything contained in this Agreement, other than in the case of an External Demand (as defined below), the receiving party may disclose either the fact that discussions or negotiations are taking place concerning the Purpose or any of the terms, conditions or other facts with respect to the Purpose, including the status thereof or that Confidential Information has been made available to the receiving party (such information, “Transaction Information”) if but only if (i) such disclosure is required under applicable securities or antitrust laws or under applicable stock exchange rules as determined based on advice of legal counsel and (ii) such disclosure requirement does not arise from a breach of this Agreement. In the event the receiving party receives a request or is required by deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process or pursuant to a formal request from a regulatory examiner (any such requested or required disclosure, an “External Demand”) to disclose all or any part of the Confidential Information of the disclosing party or the Transaction Information, the receiving party shall (1) immediately notify the disclosing party of the existence, terms and circumstances surrounding such External Demand, (2) consult with the disclosing party on the advisability of taking legally available steps to resist or narrow such request or disclosure, and (3) assist the disclosing party, at the disclosing party’s expense, in seeking a protective order or other appropriate remedy to the extent available under the circumstances. In the event that such protective order or other remedy is not obtained or that the disclosing party waives compliance with the provisions hereof, (x) the receiving party may disclose only that portion of the Confidential Information or Transaction Information which the receiving party is advised by counsel is legally required to be disclosed and to only those persons to whom the receiving party is advised by counsel are legally required to receive such information, and the receiving party shall exercise commercially reasonable efforts to obtain assurance that confidential treatment will be accorded such Confidential Information or Transaction Information, and (y) the receiving party shall not be liable for such disclosure, unless such disclosure was caused by or resulted from a previous disclosure by the receiving party not permitted by this Agreement.
5. Handling of Information and Materials. Confidential Information will not be reproduced in any form except as required to accomplish the Purpose of this Agreement. Any reproduction of any Confidential Information of the disclosing party will remain the property of the disclosing party and will contain and state any and all confidential or proprietary notices or legends that appear on the original, unless otherwise authorized in writing by the disclosing party. Upon termination or expiration of this Agreement, or upon written request of the disclosing party, each receiving party will promptly destroy (to the extent reasonably practicable in case of electronic files) or return to the other all documents and other tangible materials representing the disclosing party’s Confidential Information and all copies thereof. Notwithstanding the forgoing the receiving party may retain one copy of all Confidential Information in its legal department solely for archival and compliance purposes and its external advisors, if any, may keep one copy of their Confidential Information in accordance with the laws and professional standards applicable to them.
6. No Other Rights. The parties recognize and agree that nothing contained in this Agreement will be construed as granting any property rights, by license or otherwise, to any Confidential Information of the disclosing party disclosed pursuant to this Agreement, or to any invention or any patent, copyright, trademark, or other intellectual property right that has issued or that may issue, based on such Confidential Information. Each receiving party will not make, have made, use or sell for any purpose any product or other item using, incorporating or derived from any Confidential Information of the disclosing party.
7. Standstill. Company hereby acknowledges that, unless otherwise agreed in writing by Spark, for a period of twelve (12) months from the date of this Agreement (the “Restricted Period”) none of Company, nor any of its Affiliates (as defined in Rule 12b-2 under the Securities Exchange Act of 1934, as amended) who are provided with Confidential Information or become aware of Company’s discussions with Spark, will: (a) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of Spark’s assets or businesses, or similar transactions involving Spark or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to Spark; (b) (i) acquire beneficial ownership of any voting securities (including in derivative form) of Spark (collectively, a transaction specified in (a)(i), (a)(ii) and (b)(i) involving a majority of Spark’s outstanding voting securities or consolidated assets, is referred to as a “Business Combination”), (ii) propose or seek, whether alone or in concert with others, any “solicitation” (as such term is used in the rules of the Securities and Exchange Commission) of proxies or consents to vote any securities (including in derivative form) of Spark, (iii) nominate any person as a director of Spark, or (iv) propose any matter to be voted upon by the stockholders of Spark; (c) directly or indirectly, form, join or in any way participate in a third party “group” (as such term is used in the rules of the Securities and Exchange Commission) (or discuss with any third party the potential formation of a group) with respect to any voting securities (including in derivative form) of Spark or a Business Combination involving Spark; (d) request Spark (or any of its officers, directors or representatives), directly or indirectly, to amend or waive any provision of this paragraph (including this sentence) in a way which would require Spark to publicly disclose the same; or (d) take any action that could require Spark to make a public announcement regarding a potential Business Combination; provided, however, that nothing in this paragraph shall prohibit Company from make a confidential proposal to Spark or Spark’s Chairman of the Board of Directors for a transaction involving a Business Combination at any time for a transaction involving a Business Combination. Notwithstanding the foregoing provisions of this paragraph to the contrary, the foregoing restrictions set forth in this paragraph shall immediately and automatically terminate and cease to apply with respect to Company and its Affiliates without any further action in the event that (A) Spark’s board of directors (or a committee thereof) approves, or Spark enters into a definitive agreement providing for, a Business Combination, (B) a third party commences, or announces an intention to commence, a tender or exchange offer, the consummation of which would constitute a Business Combination and (i) the board of directors (or a committee thereof) of Spark at any time recommends, or publicly discloses an intention to recommend, that Spark’s shareholders tender their shares into such tender or exchange offer (as it may have been amended), or (ii) the board of directors (or a committee thereof) of Spark does not, within ten business days from the date such offer is first published, sent or given to shareholders, recommend that Spark’s shareholders not tender their shares into such tender or exchange offer (as it may have been amended) or at any time thereafter changes its recommendation with respect to such tender or exchange offer (as it may have been amended) or takes any similar action that results in such board of directors no longer recommending that Spark’s shareholders not tender their shares into such tender or exchange offer, (C) any person or “group” (as such term is used under the Exchange Act) commences, or announces an intention to commence, any “solicitation” of “proxies” (as such terms are used under the Exchange Act) or consents with respect to the voting securities of Spark in which such person or group would, if successful, elect or acquire the ability to elect a majority of the members of the board of directors of Spark or result in a majority of the seats of the board of directors of Spark becoming vacant, or (D) with respect to any pending tender offer or exchange offer for shares of Spark, the consummation of which would constitute a Business Combination, Spark’s board of directors (or any committee thereof) no longer recommends that its shareholders tender their shares into such tender or exchange offer (as it may have been amended). The parties further acknowledge that Spark may enter into additional standstill agreements similar to the provision in this paragraph with third parties in connection with such third parties evaluating a possible transaction with Spark (“Other Standstill Agreement”), and the parties hereby agree that, to the extent that any such Other Standstill Agreement contains provisions that are more favorable to the third party than the provisions in this paragraph, this Agreement shall be deemed automatically amended to incorporate such more favorable terms as set forth in the Other Standstill Agreement. Following the expiration of the Restricted Period, no provision of this agreement shall restrict Company or its Affiliates, directly or indirectly, from taking any action described in this paragraph 7 (including using for the purpose of such action, but not otherwise disclosing any Confidential Information). For the avoidance of doubt, nothing in this paragraph 7 shall prevent the Company from entering into license, collaboration or other similar agreements in the ordinary course of business.
8. Passive Investments. The provisions of paragraph 7 shall not prohibit, Company or its Affiliates from owning and/or acquiring voting shares or other ownership interests in Spark provided that Company together with its Affiliates owns, in the aggregate, not more 5% of such voting securities. The provisions of paragraph 7 shall not prohibit passive investments by a pension or employee benefit plan or trust for Company’s or its Affiliates employees so long as such investments are directed by independent trustees, administrators or employees to whom no Confidential Information has been disclosed.
9. Term and Termination. This Agreement will terminate one (1) year after the Effective Date, or may be terminated by either party at any time upon thirty (30) days written notice to the other party. The receiving party’s obligations under this Agreement will survive termination or expiration of this Agreement for a period of five (5) years after the termination or expiration hereof and will be binding upon the receiving party’s heirs, successors and assigns after such termination or expiration; provided that the rights and obligations in Section 7 shall expire as set forth therein.
10. Notice. Any notice to be given hereunder by either party to the other will be in writing addressed to the address set forth in the opening paragraph above (unless either provides written notice of a different address) and will be deemed given: (a) upon delivery if sent by overnight courier; or (b) three (3) days after deposit in the mail if sent by pre-paid, certified mail, return receipt requested mail.
11. General. This Agreement constitutes the entire agreement between the parties with respect to the subject matter of this Agreement. This Agreement supersedes all previous agreements between the parties relating to the subject matter hereof. The headings to sections of this Agreement are inserted for convenience only and will not be deemed a part hereof or affect the construction or interpretation of any provision hereof. No provision of this Agreement will be deemed waived, amended or modified by either party, unless such waiver, amendment or modification is made in writing and signed by both parties. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware, without reference to conflict of laws principles. Any dispute under this Agreement may be brought in the state courts and the Federal courts located in the State of Delaware, and the parties hereby consent to the personal jurisdiction and venue of these courts. Each party acknowledges and agrees that money damages would not be a sufficient remedy for any breach (or threatened breach) of this Agreement by the receiving party or its Affiliates or representatives and that the disclosing party shall be entitled to equitable relief, including injunction and specific performance, as a remedy for any such breach (or threatened breach), without proof of damages, and each party further agrees to waive, and use its best efforts to cause its Affiliates and representatives to waive any requirement for the securing or posting of any bond in connection with any such remedy. Such remedies shall not be the exclusive remedies for a breach of this Agreement, but will be in addition to all other remedies available at law or in equity. If any provision of this Agreement is found by a proper authority to be unenforceable or invalid, such unenforceability or invalidity will not render this Agreement unenforceable or invalid as a whole, and such provision will be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or applicable court decisions. Neither party will assign or transfer any rights or obligations under this Agreement without the prior written consent of the other party, provided that a party may assign this Agreement to an Affiliate or successor without the consent of the other party in connection with a merger, reorganization, consolidation, change of control, sale of substantially all assets or similar transaction of the assigning party. Neither party will export, directly or indirectly, any technical data acquired from the other pursuant to this Agreement or any product utilizing any such data to any country for which the U.S. Government or any agency thereof at the time of export requires an export license or other governmental approval without first obtaining such license or approval. This Agreement may be executed in one (1) or more counterparts, each of which shall be an original and all of which together shall constitute one and the same document. Signatures delivered by facsimile, PDF or electronic mail shall be as effective as original signatures.
IN WITNESS WHEREOF, duly authorized representatives of the parties have executed this Mutual Non-Disclosure Agreement as of the Effective Date.
SPARK THERAPEUTICS, INC. ROCHE HOLDINGS INC.
By: /s/ Joseph W. LaBarge By: /s/ Bruce Resnick
Name: Joseph W. LaBarge Name: Bruce Resnick
Title: Chief Legal Officer Title: Vice President
| Entailment |
622_nda-11 | 622_nda-11_0 | Q: Receiving Party shall not reverse engineer any objects which embody Disclosing Party's Confidential Information.
Text: Exhibit 10.16
AMENDED AND RESTATED
SERVICES, RESELLER AND NON-COMPETITION AGREEMENT
THIS AMENDED AND RESTATED SERVICES, RESELLER AND NON-COMPETITION AGREEMENT (this “Agreement”) is made and entered into effective as of June 27, 2013 (the “Effective Date”) by and between The Advisory Board Company, a Delaware corporation (“ABCO”), and Evolent Health, Inc. (f/k/a VPHealth, Inc.), a Delaware corporation (“Evolent”), (each, a “Party”, and collectively, the “Parties”).
RECITALS
WHEREAS, ABCO and Evolent entered into a Services, Reseller and Non-Competition Agreement (the “Original Agreement”), effective as of August 31, 2011 (the “Original Effective Date”);
WHEREAS, since entering into the Original Agreement, Evolent and ABCO have continued to explore ways to improve the efficiency and implementation of their relationship; and
WHEREAS, as a result of the foregoing efforts, the Parties have agreed to amend and restate the Original Agreement as set forth in this Agreement.
NOW, THEREFORE, in consideration of the above recitals, the terms and conditions hereinafter set forth, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto agree as follows:
1. DEFINITIONS. For purposes of this Agreement:
1.1 “ABCO Restricted Products and Services” means (a) care management services including, but not limited to, traditional disease management services, direct patient outreach and other service-based care management offerings (e.g., readmissions management teams, nurse call centers, on-site care management teams); (b) care management workflow software designed for and used by provider-owned payor organizations or other entities intending to conduct active care management campaigns targeted at managing population health/longitudinal outcomes (i.e, solutions that are the same as or substantially similar to (i.e. functionality that is redundant in substantial and material respects with) HealthPlaNet); (c) services primarily intended to support cost reduction and benefit changes for health system employees; (d) consulting services comparable and competitive with blueprint consulting services offered by Evolent as of the Effective Date (“Blueprint Services”), (e) Exclusive TPA Services or (f) Crimson Care Registry products. For the avoidance of doubt, Restricted Products and Services does not include behavioral health-related services or software (e.g., Askesis Development Group software), services similar to those offered by UPMC WorkPartners (e.g., “Take-a-Healthy-Step” or similar health and wellness programs, occupational medicine, on-site clinic implementation and administration, employee assistance services, absence management or workers’ compensation services), or software or solutions similar to those offered by EBenefits Solutions, LLC.
1.2 “Active Sales Process”, with respect to any Person as of any date on which Evolent proposes to add such Person to the list of Evolent Top Prospects, means such Person (a) is not an Evolent Client as of such date and (b) either (i) has purchased ABCO Restricted Products and Services from ABCO prior to such date or (b) was engaged in active discussions with ABCO about acquiring ABCO Restricted Products and Services (including, but not limited to, a review of the applicable offering of ABCO Restricted Products and Services) as of such date.
1.3 “Affiliate” means any Person which Controls, is Controlled by, or is in common Control with, another Person.
1.4 “Business Plan” has the meaning set forth in that certain Intellectual Property License and Data Access Agreement between the Parties.
1.5 “Change of Control” with respect to any entity means a transaction or series of related transactions in which a Person, or a group of related Persons, acquires from stockholders of the subject entity, the entity’s shares representing more than fifty percent (50%) of the outstanding voting power of such entity.
1.6 “Confidential Information” means any and all technical and non-technical information, whether conveyed verbally, in writing, electronically or by any other means, including, but not limited to, trade secrets, source code, technology, know-how and proprietary information, techniques, plans or any other information relating to any research project, analysis, work in process, future development, scientific, engineering, marketing or business plans or financial, contractual or personnel matters relating to either Party or its present or future products, services, sales, suppliers, identity of and information relating to customers and prospective customers, customer or prospect list, prospective employees, investors or affiliates or other proprietary information disclosed or otherwise supplied in confidence by either Party to the other, to the extent that such information is provided pursuant to this Agreement by one Party to the other Party and is marked “confidential” or “proprietary” or that should be reasonably understood by the Receiving Party (based on the nature of the information or the context in which the information is disclosed) should be considered confidential. Confidential Information will not include information to the extent that: (a) such information is or becomes publicly available other than through any act or omission of either Party in breach of this Agreement; (b) such information was received by the Receiving Party, other than under an obligation of confidentiality, from a third party who had no obligation of confidentiality to the other Party; (c) such information was in the possession of the Receiving Party at the time of the disclosure or was independently developed by the Receiving Party, as reflected by the Receiving Party’s internal, written and dated documentation; or (d) an applicable regulation, court order or other legal process requires the disclosure of such information, provided that prior to such disclosure the Disclosing Party will give notice to the other Party so that the other Party may take reasonable steps to oppose or limit such disclosure, so that the Disclosing Party does not disclose any more information than necessary to comply with such legal process. The burden of proof that Confidential Information falls into any one of the above exemptions will be borne by the Party claiming such exemption with documentation or other credible evidence.
1.7 “Control” as used with respect to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities, by agreement or otherwise.
1.8 “Evolent Clients” means entities under a current contract with Evolent for an implementation and/or long-term services contract. 1.9 “Evolent Top Prospects” means, as of any date, up to twenty (20) potential Evolent customers in the Evolent sales pipeline identified by Evolent that are not Evolent Clients as of such date, and (a) are engaged in active discussions with Evolent regarding purchasing Evolent products and services and/or (b) are under a current contract with Evolent for Blueprint Services or other services that do not constitute implementation or long-term services; provided, however, that (i) the list of such potential Evolent customers may be updated by Evolent on a quarterly basis, and ABCO shall have the opportunity upon receipt of each such quarterly update to notify Evolent if any of the Persons added to such list are in an Active Sales Process with ABCO and shall therefore be removed from such list, and (ii) no Person shall remain on the list of Evolent Top Prospects for more than (x) twelve (12) consecutive months, in the case of potential Evolent customers without a signed agreement with Evolent, or (y) twenty-four (24) consecutive months, in the case of potential Evolent Clients that signed an agreement for Blueprint Services with Evolent before or within twelve (12) months of being added to the list of Evolent Top Prospects.
1.10 “Exclusive TPA Services” means certain services as set forth on Schedule 1 of the UPMC Reseller Agreement (as in effect on the Effective Date), to the extent that UPMC Health Plan, Inc., a Pennsylvania nonprofit corporation (“UPMC”), has the exclusive right to provide such services to Evolent, for resale by Evolent to its customers.
1.11 “Disclosing Party” means a Party that provides Confidential Information to the other Party, or the other Party’s Affiliates.
1.12 “Governmental Authority” means any federal, state, municipal, local, territorial, or other governmental department, regulatory authority, judicial or administrative body, whether domestic, foreign or international.
1.13 “Law” means all international, federal, country, state, provincial, local and other laws, rules and regulations, declaration, decree, directive, legislative enactment, order, code, ordinance, regulation, rule or other binding restriction of or by any Governmental Authority, as the same are promulgated, supplemented or amended from time to time.
1.14 “Loss” individually, and collectively, “Losses” means all claims, liabilities, obligations, losses, costs, expenses (including, without limitation, legal, accounting and similar expenses), litigation, proceedings, fines, taxes, levies, imposts, duties, deficiencies, assessments, charges, penalties, allegations, demands, damages (including, but not limited to, actual, punitive or consequential, foreseen or unforeseen, known or unknown, fixed or contingent, and matured or unmatured), civil and criminal violations of Law, settlements and judgments of any kind or nature whatsoever.
1.15 “Person” means any individual, corporation, partnership, firm, joint venture, association, limited liability company, limited liability partnership, joint-stock company, trust, joint venture, unincorporated organization, governmental, judicial or regulatory body, business unit, division or any other business entity, organization or Governmental Authority.
1.16 “Receiving Party” means a Party that receives Confidential Information from the other Party or the other Party’s Affiliates.
1.17 “Statement of Work” or “SOW” means an agreement by and between ABCO and Evolent that contains the detailed description of services, scope, specifications, pricing, implementation plan, timetables, milestones, and other terms and conditions for each procurement of services, as applicable.
1.18 “UPMC Reseller Agreement” means that certain Second Amended and Restated Reseller, Services and Non-Competition Agreement between UPMC and Evolent dated as of [the Effective Date].
2. SERVICES TO BE PROVIDED BY ABCO.
2.1 General Services:
2.1.1 Minimum Purchase. The Parties hereby acknowledge and agree that Evolent has purchased from ABCO a minimum of Two Hundred Thousand Dollars ($200,000) of services (as described in Section 2.2.1) (the “Original Minimum Purchase”) for delivery between the Original Effective Date and the first anniversary thereof.
2.1.2 Statements of Work. The specific description, price, service levels (if applicable) and other project, service, and/or customer-specific terms for a particular service that may be provided by ABCO to Evolent (each, a “Service”, and collectively, the “Services”) shall be set forth in a Statement of Work that will be created on a project by project basis.
2.2 Right of First Offer and Process for Invoking:
2.2.1 Applicable Services. Throughout the Term, ABCO shall have the right of first offer to provide the following services to Evolent and Evolent’s customers:
(a) Physician practice management consulting and other physician practice management services;
(b) Physician incentive design services;
(c) Medical home development consulting services; and
(d) Performance analytics shared with physicians with the intent to improve outcomes.
2.2.2 Process for Exercising Right of First Offer. Evolent shall notify ABCO in writing in the event Evolent desires to receive any of the above services (“First Offer Services”). ABCO shall have a period of thirty (30) days (“First Offer Services Evaluation Period”) within which to conduct its evaluation and diligence with respect to providing such First Offer Services. Evolent shall cooperate with ABCO and provide reasonable assistance and information to ABCO to enable ABCO to conduct its evaluation. Within five (5) business days after the expiration of such First Offer Services Evaluation Period, ABCO shall notify Evolent in writing whether or not it wishes to provide such services to Evolent. If ABCO elects to provide such First Offer Services, Evolent agrees to engage in good faith negotiations with ABCO, on an exclusive basis for a period of sixty (60) days, regarding the specific terms covering such First Offer Services.
2.3 Failure to Execute a Service Agreement for the VBC Innovation Center: The Parties acknowledge and agree that it was their intent as of the Original Effective Date to enter into a service agreement under which Evolent would engage ABCO to provide certain consulting, development and support services in connection with the creation, launch, implementation and ongoing support of a Value-Based Care Innovation Center (the “VBC Innovation Center”), in consideration for which Evolent would pay ABCO a fixed fee of Eight Hundred Thousand Dollars ($800,000) per year (“Fixed Fee”) for each of the first two (2) years of the term of such VBC Innovation Center service agreement. The Parties acknowledge and agree that, notwithstanding the fact that they negotiated with diligence and in good faith the specific terms and conditions of such service agreement, the Parties were unable to reach an agreement with respect to the VBC Innovation Center. Accordingly, the Original Minimum Purchase is increased to One Million Two Hundred Thousand Dollars ($1,200,000) (the “Minimum Purchase”) as follows: (a) between the Original Effective Date and the second anniversary thereof, Evolent shall have purchased from ABCO a minimum of Seven Hundred Thousand Dollars ($700,000) of services for delivery on or prior to such second anniversary of the Original Effective Date), and (b) inclusive of the purchases described in clause (a), between the Original Effective Date and the third anniversary thereof, Evolent shall have purchased from ABCO a minimum of One Million Two Hundred Thousand Dollars ($1,200,000) of services for delivery on or prior to such third anniversary of the Original Effective Date); provided that, for purposes of this sentence, “services” shall include consulting, software, professional or analytic services provided from time to time by ABCO to Evolent (other than services in connection with the provision of any office space by or on behalf of ABCO to Evolent) or, pursuant to a joint written proposal by ABCO and Evolent, to any Evolent Client.
2.4 Reservation of Rights: For the avoidance of doubt, Evolent is not precluded from offering and providing services directly to its customers, subject (a) to (i.e., after ABCO has had the full opportunity to exercise) ABCO’s right of first offer to provide any First Offer Services in accordance with Section 2.2) and (b) to Evolent’s compliance with its non-competition obligations as set forth in Section 6.2.
2.5 Designation of Relationship Managers: In order to support the launch and ongoing success of the exclusive reseller relationship between ABCO and Evolent, each Party agrees to designate a senior level individual who will serve as the primary liaison and “go to” contact and relationship manager for such Party (each, a “Relationship Manager”). Each Party’s Relationship Manager’s role and responsibilities would include: (a) facilitating day-to-day communications between the Parties regarding customer-facing activities, such as marketing, promotional and sales activities and preparing and submitting bids, proposals, responses to requests for proposals, fee estimates, Statements of Work and project plans; (b) receiving and submitting requests between the Parties for information and/or assistance; (c) overseeing the efficient knowledge transfer and flow of information between the Parties; (d) facilitating communications between the appropriate individuals within Evolent and ABCO, with respect to product and service offering development; and (e) providing the first level of performance review or escalation in the event of a Dispute as provided in Section 13. The Relationship Managers will meet regularly, but no less frequently than monthly, as reasonably necessary, to maintain a good working relationship between the Parties. Each Party may change its Relationship Manager by giving the other Party reasonable notice as long as the change is implemented in a manner that does not cause any significant disruption to each Party’s business operations and business relationship.
3. FEES; PAYMENT TERMS; SHORTFALL.
3.1 Fees; Timing of Payments: Evolent shall pay ABCO the applicable fees for the Services performed by ABCO pursuant to a Statement of Work, as follows: (a) unless the Parties otherwise agree in writing, a deposit of 50% of the total fees for the particular project shall be paid upon signing of the Statement of Work; (b) ABCO will submit an invoice to Evolent for the balance upon completion of the work; and (c) Evolent shall pay ABCO for such invoiced amount within thirty (30) days after receipt of such invoice.
3.2 Minimum Purchase and Shortfall: Evolent agrees to pay ABCO the Minimum Purchase. If the aggregate amount of Services actually procured by Evolent from ABCO is not equal to or greater than (a) Seven Hundred Thousand Dollars ($700,000) of services for delivery on or prior to the second anniversary of the Original Effective Date or (b) inclusive of the purchase described in clause (a), the Minimum Purchase of services for delivery on or prior to the third anniversary of the Original Effective Date, Evolent shall pay ABCO the amount of the shortfall (i.e., the difference between Seven Hundred Thousand Dollars ($700,000) or the Minimum Purchase amount, as applicable, less the sum of: (a) the aggregate fees for the actual amount of Services procured; and (b) any Credits (as provided in the next sentence) (the “Shortfall”), if any, on or before August 31, 2013 or August 31, 2014, as applicable. In the event that ABCO refuses or fails, without reasonable cause, to provide any of the Services requested by Evolent (provided the scope of the Services requested is within the scope customarily provided by ABCO), the fees that would otherwise have been applicable had ABCO agreed to provide such Services would count as a “Credit”. As of the date hereof, no such Credits have accrued.
4. TERM AND RENEWAL. The initial term of this Agreement shall commence on the Effective Date and unless sooner terminated in accordance with the terms hereof, shall continue until August 31, 2016 (“Initial Term”). Thereafter, this Agreement shall automatically be renewed for another five-year term (“Renewal Term”) unless either Party elects to terminate this Agreement by providing the other Party with written notice of termination one hundred eighty (180) days prior to the expiration of the current term. (“Initial Term” and “Renewal Term” collectively, the “Term”).
5. REFERRAL FEES, SOLICITATION AND COMPETITION AND POST-CLOSING SERVICES.
5.1 Referral Fees:
5.1.1 During the Term, ABCO will pay Evolent a sales referral fee for any sale made by ABCO that resulted from a “net” new sale from a new customer that was not already in ABCO’s sales pipeline (i.e., a “warm lead”) or a then-current customer of ABCO generated directly by Evolent’s efforts and without any assistance from any ABCO employee or representative (including any Evolent employee that serves on the Board of Directors of ABCO), equal to 5% of the total ABCO revenue from the new customer during the initial twelve (12) months of services under the services agreement with such new customer.
5.1.2 During the Term, Evolent will pay ABCO a sales referral fee for any sale made by Evolent that resulted from a “net” new sale from a new customer that was not already in Evolent’s sales pipeline (i.e., a “warm lead”) or a then-current customer of Evolent generated directly by ABCO’s efforts and without any assistance from any Evolent employee or representative (including any ABCO employee that serves on the Board of Directors of Evolent), in accordance with the following terms:
(a) ABCO will receive a one-time referral fee for any “employee health” diagnostic, consulting or broker services provided by Evolent to a Covered Health System, equal to the lesser of $20,000 or 5% of the total Evolent revenue from the Covered Health System during the initial twelve (12) months of services under the service agreement with such Covered Health System.
(b) ABCO will receive $50,000 per year for three (3) years for each health system joining Evolent as an Employee Health Platform Customer. An “Employee Health Platform Customer” is defined as a health system purchasing diagnostic/consulting services and ongoing medical management/health plan services (i.e., care management, HealthPlaNet care management application, and the TPA platform, etc.).
(c) ABCO will receive $100,000 per year for three (3) years for a health system joining Evolent as a Platform Health Plan Customer. A “Platform Health Plan Customer” is defined as a health system purchasing ongoing medical management services, ongoing health plan outsourcing services (i.e., TPA) and health plan management services for purposes of a licensed insurance entity with at least fifty thousand (50,000) lives (beyond the employee population).
(d) With the exception of making the introduction (either through an email or an in-person meeting) (to generate the “warm lead”), ABCO would not be expected to perform any actual duties or incur actual cost to receive a referral fee.
(e) The annual referral fees for each referral would be capped at the lesser of (x) 5% of annual revenue generated by Evolent for the respective customer and (y) the $50,000 or $100,000 figures described above, as applicable.
6. SOLICITATION AND COMPETITION.
6.1 Scope:
6.1.1 Throughout the Term, ABCO agrees not to offer any ABCO Restricted Products and Services to (a) any Evolent Clients or (b) any Evolent Top Prospects; provided, however, that ABCO shall not be restricted from making any such offer to any Evolent Top Prospect or Evolent Client with whom ABCO was, at the time such Person was identified as an Evolent Top Prospect or became an Evolent Client, engaged in an Active Sales Process. The foregoing restrictions shall not apply in the event of a Change of Control of Evolent or in the event that ABCO ceases to be a shareholder of Evolent.
6.1.2 None of the foregoing would prohibit ABCO from:
(a) Marketing, offering, licensing or selling versions of any of its Crimson Population Risk Management products, or the successors to any such products, provided that such products, or the successors to any such products, are not the same as or substantially similar to (i.e., includes functionality that is redundant in substantial and material respects with) HealthPlaNet as it exists as of the Effective Date.
(b) Supporting employers with care management related best practices and research.
(c) Offering traditional “dedicated advisor” support in conjunction with ABCO’s traditional business intelligence offerings.
(d) Marketing, offering, licensing or selling its employer health product.
(e) Providing physician management consulting and other physician management services.
6.2 Restrictions Relating to Certain ABCO Products and Services: Evolent shall not, until the earlier of (x) ABCO’s ceasing to be a shareholder of Evolent or (y) the seventh (7 ) anniversary of the date of this Agreement, promote, market, provide, offer or sellth (a) unbundled software applications, software tools or other similar technologies (including, without limitation, software as a service, analytics technology or data services) (each, a “Technology Solution”), (b) consulting services that are not intended to lead to or be a part of a Blueprint Services engagement, implementation contract and/or long-term services contract, or (c) any best practices membership programs or unbundled or bundled physician practice management and other physician practice management consulting services, in each case referred to in this clause (c) that are substantially similar to, or that are competitive with, ABCO’s best practices membership programs or physician practice management or other physician practice management consulting services that are offered by ABCO as of the date first written above. For the avoidance of doubt, “unbundled” means on a stand-alone basis, instead of “bundled”, which contemplates that the Technology Solution is both (i) offered as part of a “packaged”, integrated offering, in conjunction with other Evolent products or services that are not Technology Solutions (and not only services that constitute customary software, data and end user support-related services), such as the Exclusive TPA Services, and (ii) incidental to the provision of such other Evolent products or services. Notwithstanding any other provision hereof, the foregoing restrictions in this Section 6.2 shall survive a Change of Control of Evolent for seven (7) years from the date of this Agreement; provided, however, that prior to the seventh (7 ) anniversary of the date of thisth Agreement, the acquiring party in a Change of Control of Evolent shall be not be subject to the foregoing restrictions with respect to any Technology Solutions or consulting services, in each case, that are unrelated to the Evolent assets acquired.
6.3 Non-Solicitation or Hiring: During the Term and for a period of eighteen (18) months thereafter, Evolent shall not solicit or hire any of ABCO’s employees without ABCO’s prior written consent.
7. EXCLUSIVE RESELLER RIGHTS FOR FUTURE PRODUCTS.
In the event that Evolent creates a discrete or segregable product or service that can be sold to healthcare providers, Evolent shall notify ABCO in writing of such new offerings (“New Products”). ABCO shall have a period of ninety (90) days (“New Products Evaluation Period”) within which to conduct its evaluation and diligence with respect to providing such New Products. Evolent shall cooperate with ABCO and provide reasonable assistance and information to ABCO to enable ABCO to conduct its evaluation. Within five (5) business days after the expiration of such New Products Evaluation Period, ABCO shall notify Evolent in writing whether or not it wishes to have the right to resell such New Products. If ABCO elects to resell such New Products, Evolent and ABCO agree to negotiate in good faith on an exclusive basis for one hundred twenty (120) days the terms of a reseller agreement, under which ABCO would be the exclusive distributor (in addition to Evolent) of such New Products.
8. CONFIDENTIALITY.
8.1 Confidential Information: ABCO acknowledges that in connection with its rights and obligations under this Agreement it may gain access to the Confidential Information of Evolent and its customers and Affiliates. Evolent acknowledges that in connection with its rights and obligations under this Agreement, it may gain access to the Confidential Information of ABCO and its customers and Affiliates.
8.2 Non-Disclosure: The Receiving Party may disclose the Disclosing Party’s Confidential Information strictly on a need-to-know basis to only those personnel, including employees of the Receiving Party’s contractors, who require access to the Disclosing Party’s Confidential Information in order to perform or derive benefit from the Services or otherwise meet its obligations under this Agreement. The Receiving Party agrees: (a) to hold the Disclosing Party’s Confidential Information in strict confidence, using the same degree (but no less than a reasonable degree) of care and protection that it exercises with its own Confidential Information of a similar nature; (b) not to directly or indirectly disclose or otherwise make available any Confidential Information of the Disclosing Party to a third party; and (c) not to copy or use the Disclosing Party’s Confidential Information for any purpose other than as necessary to fulfill the Receiving Party’s obligations or exercise its rights under this Agreement. Each Receiving Party is responsible for ensuring that its employees, agents and contractors strictly abide by the requirements of confidentiality and restrictions on use as provided in this Section 8.2 and shall be liable to the Disclosing Party for any acts or omissions of its employees, agents and independent contractors relating to the Disclosing Party’s Confidential Information. The Receiving Party is allowed to disclose Confidential Information of the Disclosing Party to the extent required by Law or by the order or a court of similar judicial or administrative body with jurisdiction, provided that the Receiving Party notifies the Disclosing Party of such required disclosure promptly and in writing and cooperates with the Disclosing Party, at the Disclosing Party’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure. The provisions of this Section 8 shall survive beyond the expiration or termination of this Agreement.
8.3 Injunctive Relief: The Parties acknowledge and agree that monetary damages may be inadequate to compensate for a breach of the provisions contained in this Section 8 or other confidentiality provisions of this Agreement. In the event of such breach, the injured Party shall be entitled to seek injunctive relief (without the need to post bond) and any and all other remedies available at Law or in equity. This Section 8.3 in no way limits the liability or damages that may be assessed against a Party in the event of a breach by the other Party of any of the provisions of this Section 8.
8.4 Residuals: Notwithstanding anything in this Section 8 to the contrary, subject to any applicable statutory intellectual property rights applicable to patents, trademarks or copyrights, either Party may use “Residuals” for any purpose, including without limitation, for use in development, manufacture, promotion, sale and maintenance of its products and services; provided, however, that this right to Residuals does not represent a license under any patents, copyrights or trademarks of the Disclosing Party. The term “Residuals” means any information that is retained in the unaided memories of the Receiving Party’s employees who have had access to the Disclosing Party’s Confidential Information pursuant to the terms of this Agreement.
9. WARRANTIES.
9.1 Authority/No Conflict: ABCO represents and warrants that (a) it has the power and authority to enter into and perform its obligations under this Agreement without conflict with, default under, or violation of any Law, regulation, or agreement binding upon it, and (b) this Agreement has been duly authorized by all necessary organizational action, and duly and validly executed and delivered by it, and constitutes its legally valid and binding obligation, enforceable in accordance with its terms.
9.2 Services: ABCO represents, warrants and covenants that the Services provided under this Agreement will be performed in a professional and workmanlike manner.
9.3 Compliance with Laws/Approvals: Each of ABCO and Evolent shall comply in all material respects with all Laws and regulations applicable to ABCO or Evolent, as applicable, in performing its obligations under this Agreement. To the extent applicable, ABCO shall be responsible for obtaining all necessary permits, licenses, and consents, including governmental approvals, required of ABCO and its contractors in connection with the performance of its obligations under this Agreement, and Evolent shall be responsible for obtaining all necessary permits, licenses, and consents, including governmental approvals, required of Evolent and its contractors in connection with the performance of its obligations under this Agreement.
9.4 Limitations of Warranty: EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, ABCO MAKES NO OTHER WARRANTY OR REPRESENTATION, ORAL, WRITTEN, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE SERVICES, INCLUDING WITHOUT LIMITATION, THEIR QUALITY, PERFORMANCE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, UNINTERRUPTED OR ERROR-FREE OPERATION OR OTHERWISE HEREUNDER. The disclaimer of warranties and limitations set forth in this Agreement constitute an essential part of this Agreement.
10. INDEMNIFICATION.
10.1 IP Indemnification: ABCO shall defend, indemnify and hold harmless Evolent and its Affiliates (other than ABCO), customers, and their respective officers, directors and employees from and against any Losses resulting from a claim that the Services provided by ABCO under this Agreement infringes or misappropriates a third party’s intellectual property rights. ABCO shall also use commercially reasonable efforts to modify the allegedly infringing Services to make it non-infringing, procure a license from the third party claiming infringement to permit Evolent to continue to use the Services, or provide Evolent with functionally equivalent and non-infringing Services. THIS SECTION 10.1 SETS FORTH ABCO’S SOLE AND EXCLUSIVE LIABILITY, AND EVOLENT’S SOLE AND EXCLUSIVE REMEDY, FOR ALLEGATIONS OR CLAIMS OF INFRINGEMENT OF THIRD PARTY RIGHTS OF ANY KIND ASSERTED AGAINST EVOLENT, ITS AFFILIATES (OTHER THAN ABCO), CUSTOMERS AND THEIR RESPECTIVE OFFICERS, DIRECTORS AND EMPLOYEES. ABCO shall not be obligated to indemnify Evolent, its Affiliates, customers, and their respective officers, directors and employees for infringement or misappropriation claims to the extent such claims arise out of use by Evolent or its customers of any of the Services in a manner other than as contemplated by the Parties under this Agreement.
10.2 ABCO’s Indemnification: ABCO hereby agrees to indemnify, defend, and hold Evolent and its Affiliates (other than ABCO), and all of their respective directors, officers, members, managers, partners, employees, agents, successors and assigns, harmless from and against any Losses arising from or related to: (a) the material breach of this Agreement, including any or all SOWs, by ABCO or its personnel (including contractors); (b) breach of any of ABCO’s representations, warranties, and covenants in this Agreement; or (c) negligence or willful misconduct by ABCO or its personnel (including contractors).
10.3 Evolent’s Indemnification: Evolent hereby agrees to indemnify, defend, and hold ABCO and its Affiliates (other than Evolent), and all of their respective directors, officers, members, managers, partners, employees, agents, successors and assigns, harmless from and against any Losses arising from or related to: (a) the material breach of this Agreement, including any or all SOWS, by Evolent or its personnel (including contractors); (b) breach of any of Evolent’s representations, warranties and covenants in this Agreement; or (c) negligence or willful misconduct by Evolent or its personnel (including contractors).
10.4 Indemnification Procedure:
10.4.1 Notice of Claim. Any Party seeking indemnification hereunder (the “Indemnitee”) shall notify the Party liable for such indemnification (the “Indemnitor”) in writing of any event, omission or occurrence that the Indemnitee has determined has given or could give rise to Losses that are indemnifiable hereunder (such written notice being hereinafter referred to as a “Notice of Claims”). Such Notice of Claims shall be given promptly after the Indemnitee becomes aware of its own claim or that of a third party; provided that the failure of any Indemnitee to give notice as provided in this Section 10.4.1 shall not relieve the Indemnitor of its obligations under this Section 10. A Notice of Claims shall specify in reasonable detail the nature and any particulars of the event, omission, or occurrence giving rise to a right of indemnification. The Indemnitor shall satisfy its obligations hereunder, as the case may be, within thirty (30) days of its receipt of a Notice of Claims.
10.4.2 Process. With respect to any third party claim, demand, suit, action, or proceeding that is the subject of a Notice of Claim, the Indemnitor shall, in good faith and at its own expense, defend, contest, or otherwise protect against any such claim, demand, suit, action, or proceeding with legal counsel of its own selection (and reasonably acceptable to the Indemnitee). The Indemnitee shall have the right, but not the obligation, to participate, at its own expense, in the defense thereof through counsel of its own choice and shall have the right, but not the obligation, to assert any and all cross claims or counterclaims it may have. So long as the Indemnitor is defending in good faith any such third party claim, demand, suit, action or proceeding, the Indemnitee shall at all times cooperate, at its own expense, in all reasonable ways with, make its relevant files and records available for inspection and copying by, and make its employees available or otherwise render reasonable assistance to, the Indemnitor. In the event that the Indemnitor fails to timely defend, contest or otherwise protect against any such third party claim, demand, suit, action, or proceeding, the Indemnitee shall have the right, but not the obligation, to defend, contest, assert cross claims or counterclaims, or otherwise protect against, the same and may make any compromise or settlement thereof and be entitled to all amounts paid as a result of such third party claim, demand, suit, or action or any compromise or settlement thereof. The Indemnitor will not consent to the entry of any judgment or enter into any settlement with respect to any such third party claim, demand, suit, action or proceeding without the prior written consent of the Indemnitee, which will not be unreasonably withheld, and provided that no settlement shall require the Indemnitee to admit liability, or perform or become subject to additional obligations thereunder.
11. LIMITS OF LIABILITY. EXCEPT WITH RESPECT TO OR BREACH BY EITHER PARTY OF THE OTHER PARTY’S CONFIDENTIAL INFORMATION UNDER SECTION 8,
NEITHER EVOLENT NOR ABCO SHALL BE LIABLE FOR, NOR WILL THE MEASURE OF DAMAGES INCLUDE, ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OR AMOUNTS INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF INCOME, PROFITS, OR SAVINGS, LOSS OF DATA, OR COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES, ARISING OUT OF OR RELATING TO ITS PERFORMANCE UNDER THIS AGREEMENT UNDER ANY CAUSE OF ACTION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL EITHER PARTY’S LIABILITY EXCEED THE AMOUNT OF REVENUE ACTUALLY RECEIVED BY ABCO IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO THE CLAIM.
12. TERMINATION.
12.1 Termination for Cause: Either Party shall have the right to terminate this Agreement in the event the other Party materially violates a material provision of this Agreement and such violation is not cured or cannot be cured within thirty (30) days after written notice of such material violation.
12.2 Survival: The rights and obligations contained in Sections 1, 5 (with respect to Evolent’s payment obligations that may extend beyond the Term), 6.2, 6.3, 8, 9.4, 10, 11, 12.2, 13 and 14 shall survive any termination or expiration of this Agreement.
13. ESCALATION; DISPUTE RESOLUTION. Subject to the terms of Section 13.5, the procedures of this Section 13 will control the resolution of any and all disputes between the Parties including, without limitation, any dispute relating to disputed monies owing or breach of warranty (each, a “Dispute”). The Parties will seek to resolve each Dispute as follows:
13.1 First Level Performance Review: Each Party’s Relationship Manager will meet as often as will reasonably be required by either Party to review the performance of either Party under this Agreement and to resolve the Dispute. If these representatives are unable to resolve the Dispute within ten (10) business days after the initial request for a meeting, then the Parties will submit the Dispute to an executive level performance review as provided in Section 13.2 below.
13.2 Executive Level Performance Review: Face-to-face negotiations will be conducted by a senior executive officer of each Party (or such other executive as a Party may designate). If these representatives are unable to resolve the Dispute within five (5) business days after the Parties have commenced negotiations or ten (10) business days have passed since the initial request for a meeting at this level, then the Parties may jointly engage the services of a third-party mediator.
13.3 Arbitration: If the Parties are unable to resolve the Dispute through the alternative mechanisms described above, the Parties shall submit the Dispute for resolution through binding arbitration, except as otherwise provided in Section 13.5. The Parties agree and consent to such arbitration proceeding taking place in Wilmington, Delaware, and in accordance with the Commercial Arbitration Rules of the American Arbitration Association, except that discovery may be had in accordance with the Federal Rules of Civil Procedure. The Parties shall be permitted at least six (6) months from the date of the filing of the Arbitration Demand to conduct discovery. The arbitration proceedings shall be conducted by a panel of three (3) impartial arbitrators, with each Party selecting one (1) of the impartial arbitrators and those two (2) arbitrators then selecting the third impartial arbitrator, all such selections to be made through the procedures of the American Arbitration Association. At least one (1) arbitrator must be an attorney licensed under the Laws of Pennsylvania and at least one (1) arbitrator (may be the same Person as the Pennsylvania attorney) must have direct and substantial experience in the industry pertinent to the subject matter of the Dispute. Judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof; provided, however, in rendering its decision, the arbitrators shall be bound by the Laws of the Commonwealth of Pennsylvania (without regard to its conflicts of laws provisions) and by the terms and conditions of this Agreement setting forth the rights and responsibilities of the Parties. The decision of the arbitration panel shall be accompanied by a written opinion setting forth the factual and legal bases for the award. The arbitrators shall issue such written decision within thirty (30) days of the conclusion of the arbitration hearing. The arbitrators appointed hereunder shall not have the power to award punitive damages. Service of a petition to confirm the arbitration award may be made by United States mail, postage prepaid, or by any regularly conducted commercial express mail service, to the attorney for the Party or, if not so represented, to the Party at the address set forth herein, or to the Party’s last known business address. The prevailing Party in any action related to or arising under this Agreement shall be entitled to reasonable attorneys’ fees and costs.
13.3.1 For any Dispute in which the amount in controversy is at least One Million Dollars ($1,000,000), the following additional procedures apply:
(a) a certified court reporter shall transcribe the arbitration hearings; The Parties initially split the cost of the reporter, but such costs shall ultimately be awarded to the Party prevailing in the arbitration proceeding; and
(b) either Party may take an appeal from the final decision by making a written demand within twenty (20) days of the award.
13.3.2 Any such appeal shall be conducted as follows:
(a) such appeals are limited to issues of Law (i.e., the original award (1) contains material errors of Law such that the original award is not founded on any appropriate legal basis; (2) is based on factual findings clearly unsupported by the record; or (3) is subject to one or more grounds set forth in Section 10 of the Federal Arbitration Act or 42 Pa. C.S.A. §7341 for vacating an award);
(b) the Person hearing the appeal shall be a former federal judge mutually agreed to by the Parties or selected through the procedures of the American Arbitration Association. The former judge shall act as the appellate arbitrator;
(c) the submissions on appeal are limited to (1) the record of the arbitration, (2) a 30-page brief by the appellant, (3) a 30-page brief by the appellee and (4) a 10-page response by the appellant. The appellate arbitrator will set the dates for submission of the briefs. Oral argument may be heard at the discretion of the appellate arbitrator;
(d) the appellate arbitrator shall render a written decision within sixty (60) days of the final submission;
(e) during the pendency of the arbitration appeal, the Parties agree to suspend any running of the time to seek enforcement of the original award. The Parties also agree to waive any appeal to state or federal courts based on the grounds set forth in Section 10 of the Federal Arbitration Act for vacating an award and 42 Pa. C.S.A. § 7341;
(f) the appellate arbitrator must award costs and attorneys’ fees to the prevailing Party; and
(g) the decision of the appellate arbitrator shall be final.
13.4 Continued Performance: Each Party acknowledges that the timely and complete performance of its obligations pursuant to this Agreement is critical to the business and operations of the other Party. Accordingly, in the event of a Dispute, each Party shall continue to so perform all of its obligations under this Agreement, in good faith during the resolution of such Dispute unless and until (a) authority to stop doing so is granted or conferred by a court of competent jurisdiction or (b) this Agreement is terminated in accordance with the provisions hereof.
13.5 Equitable Relief: Notwithstanding anything contained in this Agreement to the contrary, the Parties will be entitled to seek injunctive relief, specific performance or other equitable relief whenever the facts or circumstances would permit a Party to seek equitable relief in a court of competent jurisdiction. Without limiting the generality of the foregoing, (a) Evolent agrees that there would be irreparable harm to ABCO in the event of any such breach by Evolent of Section 6.2 and ABCO shall be entitled to (i) injunctive relief to prevent breaches of Section 6.2, (ii) specific performance of this Agreement, and (iii) any other remedies provided by Law or equity, including without limitation an award for damages, and (b) ABCO agrees that there would be irreparable harm to Evolent in the event of any such breach by ABCO of Section 6.1.1, and Evolent shall be entitled to (i) injunctive relief to prevent breaches of Section 6.1.1, (ii) specific performance of this Agreement, and (iii) any other remedies provided by Law or equity, including without limitation an award for damages.
14. MISCELLANEOUS PROVISIONS.
14.1 Good Faith and Mutual Agreement: Unless otherwise expressly stated in such provision, if a provision in this Agreement calls for the consent of a Party or the mutual agreement of the Parties, the Parties agree that each will act in good faith, will not unreasonably withhold their consent and that deference shall be given to the other Party’s reasonable business requirements, and the requirements of the Parties’ respective regulators and internal controls procedures.
14.2 Independent Contractor: The relationship of ABCO to Evolent shall at all times be that of an independent contractor. Nothing in this Agreement shall be construed to create any partnership, association, joint venture, or employment between the Parties. Each Party shall have the sole and exclusive control over the labor and employee relations policies and policies relating to wages, hours, working conditions, benefits, or other conditions of its personnel and shall be responsible and liable for the acts and omissions of its employees, agents and contractors.
14.3 Assignability: Evolent has entered into this Agreement because of the expertise of ABCO, and ABCO understands that the obligations of ABCO are personal to ABCO and may not be assigned to any other company, partnership or individual without the express written consent of Evolent; provided, however, that no consent shall be required if an assignment is made in connection with a sale of all or substantially all of ABCO’s assets or stock, or in connection with a merger or Change of Control. Evolent may assign this Agreement (including the licenses granted pursuant to this Agreement) to any Affiliate of Evolent as part of an internal reorganization or in connection with a sale of substantially all of its assets or stock, or in connection with a merger or Change of Control.
14.4 Governing Law and Jurisdiction: This Agreement shall be governed by and construed and enforced in accordance with the Laws of the Commonwealth of Pennsylvania, without regard to that state or any other state’s conflicts of law rules. Each Party irrevocably consents to the personal jurisdiction of the state and federal courts located in Wilmington, Delaware for any suit or action arising from or related to this Agreement.
14.5 Force Majeure: Neither Party shall be deemed in default of this Agreement to the extent that performance of their obligations or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, act of government, or any other cause beyond the control of such Party, provided that such Party gives the other Party written notice thereof promptly and, in any event, within fifteen (15) days of discovery thereof, and uses its commercially reasonable efforts to cure any such breach.
14.6 Entire Agreement: This Agreement and its exhibits, schedules, and attachments constitute the entire understanding between the Parties with respect to the subject matter hereof and supersede all prior written or oral representations with respect to the subject matter hereof. This Agreement may not be modified, amended, or otherwise changed in any manner except by a written instrument executed by the Party against whom enforcement is sought.
14.7 Cumulative Remedies: Except as expressly provided in this Agreement, (a) remedies for breach are cumulative and may be exercised separately or concurrently, (b) the exercise of one remedy is not an election of that remedy to the exclusion of others, and (c) the provision for any remedy in this Agreement shall not affect remedies otherwise available at Law or in equity.
14.8 No Third Party Beneficiaries: The Parties do not intend that this Agreement creates any right or cause of action in or on behalf of any Person other than Evolent and ABCO.
14.9 Headings: Section headings have been included in this Agreement merely for convenience of reference. They are not to be considered part of, or to be used in interpreting this Agreement.
14.10 Binding Effect: The covenants and conditions contained herein will apply to and bind the successors, representatives, and permitted assigns of the Parties.
14.11 Expenses: Each Party shall be responsible for its own legal, accounting and other transaction costs relating to the transactions contemplated in this Agreement.
14.12 Notices: All notices required to be given hereunder shall be in writing and given hereunder, as elected by the Party giving notice, as follows: (a) by personal delivery, (b) sent by overnight courier with confirmation of receipt, or (c) dispatched by certified or registered mail, return receipt requested, postage prepaid, addressed to the Parties as follows.
If to Evolent: Evolent, Inc.
800 N. Glebe Road, Suite 500
Arlington, VA 22203
Attention: President
Morgan Lewis & Bockius, LLP
225 Franklin Street
Boston, MA 02110
Attention: Mark B. Stein, Esq.
Fax No.: (617) 341-7701
If to ABCO: The Advisory Board Company
2445 M St. NW
Washington, DC 20037
Attention: General Counsel
Notice shall be deemed given (a) on the date of receipt if delivered personally; (b) on the business day following delivery of such notice to the overnight courier; or (c) three (3) business days after deposit in the mail in accordance with the foregoing. Either Party may change the address to which to send notices by notifying the other Party of such change of address in writing in accordance with the foregoing.
14.13 Press Releases: No press releases or other public announcements concerning the transactions contemplated by this Agreement shall be made by ABCO or Evolent without the prior written consent of both Parties; provided, however, that nothing herein shall prevent a Party from supplying such information or making statements as required by governmental authority or in order for a Party to satisfy its legal obligations (prompt notice of which shall in any such case be given to the other Party).
14.14 Severability: Any terms or provisions of this Agreement that shall prove to be invalid, void or illegal shall in no way affect, impair, or invalidate any other term or provision herein and such remaining terms and provisions shall remain in full force and effect provided that its general purposes are still reasonably capable of being effected. All such terms or provisions which are determined by a court of competent jurisdiction or other dispute resolution proceeding to be invalid, void or illegal shall be construed and limited so as to allow the maximum effect permissible by Law.
14.15 Waiver: The waiver by either Party to this Agreement of any one or more defaults, if any, on the part of the other, shall not be construed to operate as a waiver of any other or future defaults under the same or different terms, conditions or covenants contained in this Agreement.
IN WITNESS WHEREOF, the Parties have executed this Agreement effective as of the date first written above.
THE ADVISORY BOARD COMPANY EVOLENT HEALTH, INC.
/s/ Evan Farber
By: Evan Farber By:
Its: General Counsel Its:
[Signature Page to Amended and Restated Services, Reseller and Non-Competition Agreement]
IN WITNESS WHEREOF, the Parties have executed this Agreement effective as of the date first written above.
THE ADVISORY BOARD COMPANY EVOLENT HEALTH, INC.
/s/ Frank Williams
By: By: Frank Williams
Its: Its: CEO
| Not mentioned |
622_nda-16 | 622_nda-16_0 | Q: Receiving Party shall destroy or return some Confidential Information upon the termination of Agreement.
Text: Exhibit 10.16
AMENDED AND RESTATED
SERVICES, RESELLER AND NON-COMPETITION AGREEMENT
THIS AMENDED AND RESTATED SERVICES, RESELLER AND NON-COMPETITION AGREEMENT (this “Agreement”) is made and entered into effective as of June 27, 2013 (the “Effective Date”) by and between The Advisory Board Company, a Delaware corporation (“ABCO”), and Evolent Health, Inc. (f/k/a VPHealth, Inc.), a Delaware corporation (“Evolent”), (each, a “Party”, and collectively, the “Parties”).
RECITALS
WHEREAS, ABCO and Evolent entered into a Services, Reseller and Non-Competition Agreement (the “Original Agreement”), effective as of August 31, 2011 (the “Original Effective Date”);
WHEREAS, since entering into the Original Agreement, Evolent and ABCO have continued to explore ways to improve the efficiency and implementation of their relationship; and
WHEREAS, as a result of the foregoing efforts, the Parties have agreed to amend and restate the Original Agreement as set forth in this Agreement.
NOW, THEREFORE, in consideration of the above recitals, the terms and conditions hereinafter set forth, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto agree as follows:
1. DEFINITIONS. For purposes of this Agreement:
1.1 “ABCO Restricted Products and Services” means (a) care management services including, but not limited to, traditional disease management services, direct patient outreach and other service-based care management offerings (e.g., readmissions management teams, nurse call centers, on-site care management teams); (b) care management workflow software designed for and used by provider-owned payor organizations or other entities intending to conduct active care management campaigns targeted at managing population health/longitudinal outcomes (i.e, solutions that are the same as or substantially similar to (i.e. functionality that is redundant in substantial and material respects with) HealthPlaNet); (c) services primarily intended to support cost reduction and benefit changes for health system employees; (d) consulting services comparable and competitive with blueprint consulting services offered by Evolent as of the Effective Date (“Blueprint Services”), (e) Exclusive TPA Services or (f) Crimson Care Registry products. For the avoidance of doubt, Restricted Products and Services does not include behavioral health-related services or software (e.g., Askesis Development Group software), services similar to those offered by UPMC WorkPartners (e.g., “Take-a-Healthy-Step” or similar health and wellness programs, occupational medicine, on-site clinic implementation and administration, employee assistance services, absence management or workers’ compensation services), or software or solutions similar to those offered by EBenefits Solutions, LLC.
1.2 “Active Sales Process”, with respect to any Person as of any date on which Evolent proposes to add such Person to the list of Evolent Top Prospects, means such Person (a) is not an Evolent Client as of such date and (b) either (i) has purchased ABCO Restricted Products and Services from ABCO prior to such date or (b) was engaged in active discussions with ABCO about acquiring ABCO Restricted Products and Services (including, but not limited to, a review of the applicable offering of ABCO Restricted Products and Services) as of such date.
1.3 “Affiliate” means any Person which Controls, is Controlled by, or is in common Control with, another Person.
1.4 “Business Plan” has the meaning set forth in that certain Intellectual Property License and Data Access Agreement between the Parties.
1.5 “Change of Control” with respect to any entity means a transaction or series of related transactions in which a Person, or a group of related Persons, acquires from stockholders of the subject entity, the entity’s shares representing more than fifty percent (50%) of the outstanding voting power of such entity.
1.6 “Confidential Information” means any and all technical and non-technical information, whether conveyed verbally, in writing, electronically or by any other means, including, but not limited to, trade secrets, source code, technology, know-how and proprietary information, techniques, plans or any other information relating to any research project, analysis, work in process, future development, scientific, engineering, marketing or business plans or financial, contractual or personnel matters relating to either Party or its present or future products, services, sales, suppliers, identity of and information relating to customers and prospective customers, customer or prospect list, prospective employees, investors or affiliates or other proprietary information disclosed or otherwise supplied in confidence by either Party to the other, to the extent that such information is provided pursuant to this Agreement by one Party to the other Party and is marked “confidential” or “proprietary” or that should be reasonably understood by the Receiving Party (based on the nature of the information or the context in which the information is disclosed) should be considered confidential. Confidential Information will not include information to the extent that: (a) such information is or becomes publicly available other than through any act or omission of either Party in breach of this Agreement; (b) such information was received by the Receiving Party, other than under an obligation of confidentiality, from a third party who had no obligation of confidentiality to the other Party; (c) such information was in the possession of the Receiving Party at the time of the disclosure or was independently developed by the Receiving Party, as reflected by the Receiving Party’s internal, written and dated documentation; or (d) an applicable regulation, court order or other legal process requires the disclosure of such information, provided that prior to such disclosure the Disclosing Party will give notice to the other Party so that the other Party may take reasonable steps to oppose or limit such disclosure, so that the Disclosing Party does not disclose any more information than necessary to comply with such legal process. The burden of proof that Confidential Information falls into any one of the above exemptions will be borne by the Party claiming such exemption with documentation or other credible evidence.
1.7 “Control” as used with respect to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities, by agreement or otherwise.
1.8 “Evolent Clients” means entities under a current contract with Evolent for an implementation and/or long-term services contract. 1.9 “Evolent Top Prospects” means, as of any date, up to twenty (20) potential Evolent customers in the Evolent sales pipeline identified by Evolent that are not Evolent Clients as of such date, and (a) are engaged in active discussions with Evolent regarding purchasing Evolent products and services and/or (b) are under a current contract with Evolent for Blueprint Services or other services that do not constitute implementation or long-term services; provided, however, that (i) the list of such potential Evolent customers may be updated by Evolent on a quarterly basis, and ABCO shall have the opportunity upon receipt of each such quarterly update to notify Evolent if any of the Persons added to such list are in an Active Sales Process with ABCO and shall therefore be removed from such list, and (ii) no Person shall remain on the list of Evolent Top Prospects for more than (x) twelve (12) consecutive months, in the case of potential Evolent customers without a signed agreement with Evolent, or (y) twenty-four (24) consecutive months, in the case of potential Evolent Clients that signed an agreement for Blueprint Services with Evolent before or within twelve (12) months of being added to the list of Evolent Top Prospects.
1.10 “Exclusive TPA Services” means certain services as set forth on Schedule 1 of the UPMC Reseller Agreement (as in effect on the Effective Date), to the extent that UPMC Health Plan, Inc., a Pennsylvania nonprofit corporation (“UPMC”), has the exclusive right to provide such services to Evolent, for resale by Evolent to its customers.
1.11 “Disclosing Party” means a Party that provides Confidential Information to the other Party, or the other Party’s Affiliates.
1.12 “Governmental Authority” means any federal, state, municipal, local, territorial, or other governmental department, regulatory authority, judicial or administrative body, whether domestic, foreign or international.
1.13 “Law” means all international, federal, country, state, provincial, local and other laws, rules and regulations, declaration, decree, directive, legislative enactment, order, code, ordinance, regulation, rule or other binding restriction of or by any Governmental Authority, as the same are promulgated, supplemented or amended from time to time.
1.14 “Loss” individually, and collectively, “Losses” means all claims, liabilities, obligations, losses, costs, expenses (including, without limitation, legal, accounting and similar expenses), litigation, proceedings, fines, taxes, levies, imposts, duties, deficiencies, assessments, charges, penalties, allegations, demands, damages (including, but not limited to, actual, punitive or consequential, foreseen or unforeseen, known or unknown, fixed or contingent, and matured or unmatured), civil and criminal violations of Law, settlements and judgments of any kind or nature whatsoever.
1.15 “Person” means any individual, corporation, partnership, firm, joint venture, association, limited liability company, limited liability partnership, joint-stock company, trust, joint venture, unincorporated organization, governmental, judicial or regulatory body, business unit, division or any other business entity, organization or Governmental Authority.
1.16 “Receiving Party” means a Party that receives Confidential Information from the other Party or the other Party’s Affiliates.
1.17 “Statement of Work” or “SOW” means an agreement by and between ABCO and Evolent that contains the detailed description of services, scope, specifications, pricing, implementation plan, timetables, milestones, and other terms and conditions for each procurement of services, as applicable.
1.18 “UPMC Reseller Agreement” means that certain Second Amended and Restated Reseller, Services and Non-Competition Agreement between UPMC and Evolent dated as of [the Effective Date].
2. SERVICES TO BE PROVIDED BY ABCO.
2.1 General Services:
2.1.1 Minimum Purchase. The Parties hereby acknowledge and agree that Evolent has purchased from ABCO a minimum of Two Hundred Thousand Dollars ($200,000) of services (as described in Section 2.2.1) (the “Original Minimum Purchase”) for delivery between the Original Effective Date and the first anniversary thereof.
2.1.2 Statements of Work. The specific description, price, service levels (if applicable) and other project, service, and/or customer-specific terms for a particular service that may be provided by ABCO to Evolent (each, a “Service”, and collectively, the “Services”) shall be set forth in a Statement of Work that will be created on a project by project basis.
2.2 Right of First Offer and Process for Invoking:
2.2.1 Applicable Services. Throughout the Term, ABCO shall have the right of first offer to provide the following services to Evolent and Evolent’s customers:
(a) Physician practice management consulting and other physician practice management services;
(b) Physician incentive design services;
(c) Medical home development consulting services; and
(d) Performance analytics shared with physicians with the intent to improve outcomes.
2.2.2 Process for Exercising Right of First Offer. Evolent shall notify ABCO in writing in the event Evolent desires to receive any of the above services (“First Offer Services”). ABCO shall have a period of thirty (30) days (“First Offer Services Evaluation Period”) within which to conduct its evaluation and diligence with respect to providing such First Offer Services. Evolent shall cooperate with ABCO and provide reasonable assistance and information to ABCO to enable ABCO to conduct its evaluation. Within five (5) business days after the expiration of such First Offer Services Evaluation Period, ABCO shall notify Evolent in writing whether or not it wishes to provide such services to Evolent. If ABCO elects to provide such First Offer Services, Evolent agrees to engage in good faith negotiations with ABCO, on an exclusive basis for a period of sixty (60) days, regarding the specific terms covering such First Offer Services.
2.3 Failure to Execute a Service Agreement for the VBC Innovation Center: The Parties acknowledge and agree that it was their intent as of the Original Effective Date to enter into a service agreement under which Evolent would engage ABCO to provide certain consulting, development and support services in connection with the creation, launch, implementation and ongoing support of a Value-Based Care Innovation Center (the “VBC Innovation Center”), in consideration for which Evolent would pay ABCO a fixed fee of Eight Hundred Thousand Dollars ($800,000) per year (“Fixed Fee”) for each of the first two (2) years of the term of such VBC Innovation Center service agreement. The Parties acknowledge and agree that, notwithstanding the fact that they negotiated with diligence and in good faith the specific terms and conditions of such service agreement, the Parties were unable to reach an agreement with respect to the VBC Innovation Center. Accordingly, the Original Minimum Purchase is increased to One Million Two Hundred Thousand Dollars ($1,200,000) (the “Minimum Purchase”) as follows: (a) between the Original Effective Date and the second anniversary thereof, Evolent shall have purchased from ABCO a minimum of Seven Hundred Thousand Dollars ($700,000) of services for delivery on or prior to such second anniversary of the Original Effective Date), and (b) inclusive of the purchases described in clause (a), between the Original Effective Date and the third anniversary thereof, Evolent shall have purchased from ABCO a minimum of One Million Two Hundred Thousand Dollars ($1,200,000) of services for delivery on or prior to such third anniversary of the Original Effective Date); provided that, for purposes of this sentence, “services” shall include consulting, software, professional or analytic services provided from time to time by ABCO to Evolent (other than services in connection with the provision of any office space by or on behalf of ABCO to Evolent) or, pursuant to a joint written proposal by ABCO and Evolent, to any Evolent Client.
2.4 Reservation of Rights: For the avoidance of doubt, Evolent is not precluded from offering and providing services directly to its customers, subject (a) to (i.e., after ABCO has had the full opportunity to exercise) ABCO’s right of first offer to provide any First Offer Services in accordance with Section 2.2) and (b) to Evolent’s compliance with its non-competition obligations as set forth in Section 6.2.
2.5 Designation of Relationship Managers: In order to support the launch and ongoing success of the exclusive reseller relationship between ABCO and Evolent, each Party agrees to designate a senior level individual who will serve as the primary liaison and “go to” contact and relationship manager for such Party (each, a “Relationship Manager”). Each Party’s Relationship Manager’s role and responsibilities would include: (a) facilitating day-to-day communications between the Parties regarding customer-facing activities, such as marketing, promotional and sales activities and preparing and submitting bids, proposals, responses to requests for proposals, fee estimates, Statements of Work and project plans; (b) receiving and submitting requests between the Parties for information and/or assistance; (c) overseeing the efficient knowledge transfer and flow of information between the Parties; (d) facilitating communications between the appropriate individuals within Evolent and ABCO, with respect to product and service offering development; and (e) providing the first level of performance review or escalation in the event of a Dispute as provided in Section 13. The Relationship Managers will meet regularly, but no less frequently than monthly, as reasonably necessary, to maintain a good working relationship between the Parties. Each Party may change its Relationship Manager by giving the other Party reasonable notice as long as the change is implemented in a manner that does not cause any significant disruption to each Party’s business operations and business relationship.
3. FEES; PAYMENT TERMS; SHORTFALL.
3.1 Fees; Timing of Payments: Evolent shall pay ABCO the applicable fees for the Services performed by ABCO pursuant to a Statement of Work, as follows: (a) unless the Parties otherwise agree in writing, a deposit of 50% of the total fees for the particular project shall be paid upon signing of the Statement of Work; (b) ABCO will submit an invoice to Evolent for the balance upon completion of the work; and (c) Evolent shall pay ABCO for such invoiced amount within thirty (30) days after receipt of such invoice.
3.2 Minimum Purchase and Shortfall: Evolent agrees to pay ABCO the Minimum Purchase. If the aggregate amount of Services actually procured by Evolent from ABCO is not equal to or greater than (a) Seven Hundred Thousand Dollars ($700,000) of services for delivery on or prior to the second anniversary of the Original Effective Date or (b) inclusive of the purchase described in clause (a), the Minimum Purchase of services for delivery on or prior to the third anniversary of the Original Effective Date, Evolent shall pay ABCO the amount of the shortfall (i.e., the difference between Seven Hundred Thousand Dollars ($700,000) or the Minimum Purchase amount, as applicable, less the sum of: (a) the aggregate fees for the actual amount of Services procured; and (b) any Credits (as provided in the next sentence) (the “Shortfall”), if any, on or before August 31, 2013 or August 31, 2014, as applicable. In the event that ABCO refuses or fails, without reasonable cause, to provide any of the Services requested by Evolent (provided the scope of the Services requested is within the scope customarily provided by ABCO), the fees that would otherwise have been applicable had ABCO agreed to provide such Services would count as a “Credit”. As of the date hereof, no such Credits have accrued.
4. TERM AND RENEWAL. The initial term of this Agreement shall commence on the Effective Date and unless sooner terminated in accordance with the terms hereof, shall continue until August 31, 2016 (“Initial Term”). Thereafter, this Agreement shall automatically be renewed for another five-year term (“Renewal Term”) unless either Party elects to terminate this Agreement by providing the other Party with written notice of termination one hundred eighty (180) days prior to the expiration of the current term. (“Initial Term” and “Renewal Term” collectively, the “Term”).
5. REFERRAL FEES, SOLICITATION AND COMPETITION AND POST-CLOSING SERVICES.
5.1 Referral Fees:
5.1.1 During the Term, ABCO will pay Evolent a sales referral fee for any sale made by ABCO that resulted from a “net” new sale from a new customer that was not already in ABCO’s sales pipeline (i.e., a “warm lead”) or a then-current customer of ABCO generated directly by Evolent’s efforts and without any assistance from any ABCO employee or representative (including any Evolent employee that serves on the Board of Directors of ABCO), equal to 5% of the total ABCO revenue from the new customer during the initial twelve (12) months of services under the services agreement with such new customer.
5.1.2 During the Term, Evolent will pay ABCO a sales referral fee for any sale made by Evolent that resulted from a “net” new sale from a new customer that was not already in Evolent’s sales pipeline (i.e., a “warm lead”) or a then-current customer of Evolent generated directly by ABCO’s efforts and without any assistance from any Evolent employee or representative (including any ABCO employee that serves on the Board of Directors of Evolent), in accordance with the following terms:
(a) ABCO will receive a one-time referral fee for any “employee health” diagnostic, consulting or broker services provided by Evolent to a Covered Health System, equal to the lesser of $20,000 or 5% of the total Evolent revenue from the Covered Health System during the initial twelve (12) months of services under the service agreement with such Covered Health System.
(b) ABCO will receive $50,000 per year for three (3) years for each health system joining Evolent as an Employee Health Platform Customer. An “Employee Health Platform Customer” is defined as a health system purchasing diagnostic/consulting services and ongoing medical management/health plan services (i.e., care management, HealthPlaNet care management application, and the TPA platform, etc.).
(c) ABCO will receive $100,000 per year for three (3) years for a health system joining Evolent as a Platform Health Plan Customer. A “Platform Health Plan Customer” is defined as a health system purchasing ongoing medical management services, ongoing health plan outsourcing services (i.e., TPA) and health plan management services for purposes of a licensed insurance entity with at least fifty thousand (50,000) lives (beyond the employee population).
(d) With the exception of making the introduction (either through an email or an in-person meeting) (to generate the “warm lead”), ABCO would not be expected to perform any actual duties or incur actual cost to receive a referral fee.
(e) The annual referral fees for each referral would be capped at the lesser of (x) 5% of annual revenue generated by Evolent for the respective customer and (y) the $50,000 or $100,000 figures described above, as applicable.
6. SOLICITATION AND COMPETITION.
6.1 Scope:
6.1.1 Throughout the Term, ABCO agrees not to offer any ABCO Restricted Products and Services to (a) any Evolent Clients or (b) any Evolent Top Prospects; provided, however, that ABCO shall not be restricted from making any such offer to any Evolent Top Prospect or Evolent Client with whom ABCO was, at the time such Person was identified as an Evolent Top Prospect or became an Evolent Client, engaged in an Active Sales Process. The foregoing restrictions shall not apply in the event of a Change of Control of Evolent or in the event that ABCO ceases to be a shareholder of Evolent.
6.1.2 None of the foregoing would prohibit ABCO from:
(a) Marketing, offering, licensing or selling versions of any of its Crimson Population Risk Management products, or the successors to any such products, provided that such products, or the successors to any such products, are not the same as or substantially similar to (i.e., includes functionality that is redundant in substantial and material respects with) HealthPlaNet as it exists as of the Effective Date.
(b) Supporting employers with care management related best practices and research.
(c) Offering traditional “dedicated advisor” support in conjunction with ABCO’s traditional business intelligence offerings.
(d) Marketing, offering, licensing or selling its employer health product.
(e) Providing physician management consulting and other physician management services.
6.2 Restrictions Relating to Certain ABCO Products and Services: Evolent shall not, until the earlier of (x) ABCO’s ceasing to be a shareholder of Evolent or (y) the seventh (7 ) anniversary of the date of this Agreement, promote, market, provide, offer or sellth (a) unbundled software applications, software tools or other similar technologies (including, without limitation, software as a service, analytics technology or data services) (each, a “Technology Solution”), (b) consulting services that are not intended to lead to or be a part of a Blueprint Services engagement, implementation contract and/or long-term services contract, or (c) any best practices membership programs or unbundled or bundled physician practice management and other physician practice management consulting services, in each case referred to in this clause (c) that are substantially similar to, or that are competitive with, ABCO’s best practices membership programs or physician practice management or other physician practice management consulting services that are offered by ABCO as of the date first written above. For the avoidance of doubt, “unbundled” means on a stand-alone basis, instead of “bundled”, which contemplates that the Technology Solution is both (i) offered as part of a “packaged”, integrated offering, in conjunction with other Evolent products or services that are not Technology Solutions (and not only services that constitute customary software, data and end user support-related services), such as the Exclusive TPA Services, and (ii) incidental to the provision of such other Evolent products or services. Notwithstanding any other provision hereof, the foregoing restrictions in this Section 6.2 shall survive a Change of Control of Evolent for seven (7) years from the date of this Agreement; provided, however, that prior to the seventh (7 ) anniversary of the date of thisth Agreement, the acquiring party in a Change of Control of Evolent shall be not be subject to the foregoing restrictions with respect to any Technology Solutions or consulting services, in each case, that are unrelated to the Evolent assets acquired.
6.3 Non-Solicitation or Hiring: During the Term and for a period of eighteen (18) months thereafter, Evolent shall not solicit or hire any of ABCO’s employees without ABCO’s prior written consent.
7. EXCLUSIVE RESELLER RIGHTS FOR FUTURE PRODUCTS.
In the event that Evolent creates a discrete or segregable product or service that can be sold to healthcare providers, Evolent shall notify ABCO in writing of such new offerings (“New Products”). ABCO shall have a period of ninety (90) days (“New Products Evaluation Period”) within which to conduct its evaluation and diligence with respect to providing such New Products. Evolent shall cooperate with ABCO and provide reasonable assistance and information to ABCO to enable ABCO to conduct its evaluation. Within five (5) business days after the expiration of such New Products Evaluation Period, ABCO shall notify Evolent in writing whether or not it wishes to have the right to resell such New Products. If ABCO elects to resell such New Products, Evolent and ABCO agree to negotiate in good faith on an exclusive basis for one hundred twenty (120) days the terms of a reseller agreement, under which ABCO would be the exclusive distributor (in addition to Evolent) of such New Products.
8. CONFIDENTIALITY.
8.1 Confidential Information: ABCO acknowledges that in connection with its rights and obligations under this Agreement it may gain access to the Confidential Information of Evolent and its customers and Affiliates. Evolent acknowledges that in connection with its rights and obligations under this Agreement, it may gain access to the Confidential Information of ABCO and its customers and Affiliates.
8.2 Non-Disclosure: The Receiving Party may disclose the Disclosing Party’s Confidential Information strictly on a need-to-know basis to only those personnel, including employees of the Receiving Party’s contractors, who require access to the Disclosing Party’s Confidential Information in order to perform or derive benefit from the Services or otherwise meet its obligations under this Agreement. The Receiving Party agrees: (a) to hold the Disclosing Party’s Confidential Information in strict confidence, using the same degree (but no less than a reasonable degree) of care and protection that it exercises with its own Confidential Information of a similar nature; (b) not to directly or indirectly disclose or otherwise make available any Confidential Information of the Disclosing Party to a third party; and (c) not to copy or use the Disclosing Party’s Confidential Information for any purpose other than as necessary to fulfill the Receiving Party’s obligations or exercise its rights under this Agreement. Each Receiving Party is responsible for ensuring that its employees, agents and contractors strictly abide by the requirements of confidentiality and restrictions on use as provided in this Section 8.2 and shall be liable to the Disclosing Party for any acts or omissions of its employees, agents and independent contractors relating to the Disclosing Party’s Confidential Information. The Receiving Party is allowed to disclose Confidential Information of the Disclosing Party to the extent required by Law or by the order or a court of similar judicial or administrative body with jurisdiction, provided that the Receiving Party notifies the Disclosing Party of such required disclosure promptly and in writing and cooperates with the Disclosing Party, at the Disclosing Party’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure. The provisions of this Section 8 shall survive beyond the expiration or termination of this Agreement.
8.3 Injunctive Relief: The Parties acknowledge and agree that monetary damages may be inadequate to compensate for a breach of the provisions contained in this Section 8 or other confidentiality provisions of this Agreement. In the event of such breach, the injured Party shall be entitled to seek injunctive relief (without the need to post bond) and any and all other remedies available at Law or in equity. This Section 8.3 in no way limits the liability or damages that may be assessed against a Party in the event of a breach by the other Party of any of the provisions of this Section 8.
8.4 Residuals: Notwithstanding anything in this Section 8 to the contrary, subject to any applicable statutory intellectual property rights applicable to patents, trademarks or copyrights, either Party may use “Residuals” for any purpose, including without limitation, for use in development, manufacture, promotion, sale and maintenance of its products and services; provided, however, that this right to Residuals does not represent a license under any patents, copyrights or trademarks of the Disclosing Party. The term “Residuals” means any information that is retained in the unaided memories of the Receiving Party’s employees who have had access to the Disclosing Party’s Confidential Information pursuant to the terms of this Agreement.
9. WARRANTIES.
9.1 Authority/No Conflict: ABCO represents and warrants that (a) it has the power and authority to enter into and perform its obligations under this Agreement without conflict with, default under, or violation of any Law, regulation, or agreement binding upon it, and (b) this Agreement has been duly authorized by all necessary organizational action, and duly and validly executed and delivered by it, and constitutes its legally valid and binding obligation, enforceable in accordance with its terms.
9.2 Services: ABCO represents, warrants and covenants that the Services provided under this Agreement will be performed in a professional and workmanlike manner.
9.3 Compliance with Laws/Approvals: Each of ABCO and Evolent shall comply in all material respects with all Laws and regulations applicable to ABCO or Evolent, as applicable, in performing its obligations under this Agreement. To the extent applicable, ABCO shall be responsible for obtaining all necessary permits, licenses, and consents, including governmental approvals, required of ABCO and its contractors in connection with the performance of its obligations under this Agreement, and Evolent shall be responsible for obtaining all necessary permits, licenses, and consents, including governmental approvals, required of Evolent and its contractors in connection with the performance of its obligations under this Agreement.
9.4 Limitations of Warranty: EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, ABCO MAKES NO OTHER WARRANTY OR REPRESENTATION, ORAL, WRITTEN, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE SERVICES, INCLUDING WITHOUT LIMITATION, THEIR QUALITY, PERFORMANCE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, UNINTERRUPTED OR ERROR-FREE OPERATION OR OTHERWISE HEREUNDER. The disclaimer of warranties and limitations set forth in this Agreement constitute an essential part of this Agreement.
10. INDEMNIFICATION.
10.1 IP Indemnification: ABCO shall defend, indemnify and hold harmless Evolent and its Affiliates (other than ABCO), customers, and their respective officers, directors and employees from and against any Losses resulting from a claim that the Services provided by ABCO under this Agreement infringes or misappropriates a third party’s intellectual property rights. ABCO shall also use commercially reasonable efforts to modify the allegedly infringing Services to make it non-infringing, procure a license from the third party claiming infringement to permit Evolent to continue to use the Services, or provide Evolent with functionally equivalent and non-infringing Services. THIS SECTION 10.1 SETS FORTH ABCO’S SOLE AND EXCLUSIVE LIABILITY, AND EVOLENT’S SOLE AND EXCLUSIVE REMEDY, FOR ALLEGATIONS OR CLAIMS OF INFRINGEMENT OF THIRD PARTY RIGHTS OF ANY KIND ASSERTED AGAINST EVOLENT, ITS AFFILIATES (OTHER THAN ABCO), CUSTOMERS AND THEIR RESPECTIVE OFFICERS, DIRECTORS AND EMPLOYEES. ABCO shall not be obligated to indemnify Evolent, its Affiliates, customers, and their respective officers, directors and employees for infringement or misappropriation claims to the extent such claims arise out of use by Evolent or its customers of any of the Services in a manner other than as contemplated by the Parties under this Agreement.
10.2 ABCO’s Indemnification: ABCO hereby agrees to indemnify, defend, and hold Evolent and its Affiliates (other than ABCO), and all of their respective directors, officers, members, managers, partners, employees, agents, successors and assigns, harmless from and against any Losses arising from or related to: (a) the material breach of this Agreement, including any or all SOWs, by ABCO or its personnel (including contractors); (b) breach of any of ABCO’s representations, warranties, and covenants in this Agreement; or (c) negligence or willful misconduct by ABCO or its personnel (including contractors).
10.3 Evolent’s Indemnification: Evolent hereby agrees to indemnify, defend, and hold ABCO and its Affiliates (other than Evolent), and all of their respective directors, officers, members, managers, partners, employees, agents, successors and assigns, harmless from and against any Losses arising from or related to: (a) the material breach of this Agreement, including any or all SOWS, by Evolent or its personnel (including contractors); (b) breach of any of Evolent’s representations, warranties and covenants in this Agreement; or (c) negligence or willful misconduct by Evolent or its personnel (including contractors).
10.4 Indemnification Procedure:
10.4.1 Notice of Claim. Any Party seeking indemnification hereunder (the “Indemnitee”) shall notify the Party liable for such indemnification (the “Indemnitor”) in writing of any event, omission or occurrence that the Indemnitee has determined has given or could give rise to Losses that are indemnifiable hereunder (such written notice being hereinafter referred to as a “Notice of Claims”). Such Notice of Claims shall be given promptly after the Indemnitee becomes aware of its own claim or that of a third party; provided that the failure of any Indemnitee to give notice as provided in this Section 10.4.1 shall not relieve the Indemnitor of its obligations under this Section 10. A Notice of Claims shall specify in reasonable detail the nature and any particulars of the event, omission, or occurrence giving rise to a right of indemnification. The Indemnitor shall satisfy its obligations hereunder, as the case may be, within thirty (30) days of its receipt of a Notice of Claims.
10.4.2 Process. With respect to any third party claim, demand, suit, action, or proceeding that is the subject of a Notice of Claim, the Indemnitor shall, in good faith and at its own expense, defend, contest, or otherwise protect against any such claim, demand, suit, action, or proceeding with legal counsel of its own selection (and reasonably acceptable to the Indemnitee). The Indemnitee shall have the right, but not the obligation, to participate, at its own expense, in the defense thereof through counsel of its own choice and shall have the right, but not the obligation, to assert any and all cross claims or counterclaims it may have. So long as the Indemnitor is defending in good faith any such third party claim, demand, suit, action or proceeding, the Indemnitee shall at all times cooperate, at its own expense, in all reasonable ways with, make its relevant files and records available for inspection and copying by, and make its employees available or otherwise render reasonable assistance to, the Indemnitor. In the event that the Indemnitor fails to timely defend, contest or otherwise protect against any such third party claim, demand, suit, action, or proceeding, the Indemnitee shall have the right, but not the obligation, to defend, contest, assert cross claims or counterclaims, or otherwise protect against, the same and may make any compromise or settlement thereof and be entitled to all amounts paid as a result of such third party claim, demand, suit, or action or any compromise or settlement thereof. The Indemnitor will not consent to the entry of any judgment or enter into any settlement with respect to any such third party claim, demand, suit, action or proceeding without the prior written consent of the Indemnitee, which will not be unreasonably withheld, and provided that no settlement shall require the Indemnitee to admit liability, or perform or become subject to additional obligations thereunder.
11. LIMITS OF LIABILITY. EXCEPT WITH RESPECT TO OR BREACH BY EITHER PARTY OF THE OTHER PARTY’S CONFIDENTIAL INFORMATION UNDER SECTION 8,
NEITHER EVOLENT NOR ABCO SHALL BE LIABLE FOR, NOR WILL THE MEASURE OF DAMAGES INCLUDE, ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OR AMOUNTS INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF INCOME, PROFITS, OR SAVINGS, LOSS OF DATA, OR COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES, ARISING OUT OF OR RELATING TO ITS PERFORMANCE UNDER THIS AGREEMENT UNDER ANY CAUSE OF ACTION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL EITHER PARTY’S LIABILITY EXCEED THE AMOUNT OF REVENUE ACTUALLY RECEIVED BY ABCO IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO THE CLAIM.
12. TERMINATION.
12.1 Termination for Cause: Either Party shall have the right to terminate this Agreement in the event the other Party materially violates a material provision of this Agreement and such violation is not cured or cannot be cured within thirty (30) days after written notice of such material violation.
12.2 Survival: The rights and obligations contained in Sections 1, 5 (with respect to Evolent’s payment obligations that may extend beyond the Term), 6.2, 6.3, 8, 9.4, 10, 11, 12.2, 13 and 14 shall survive any termination or expiration of this Agreement.
13. ESCALATION; DISPUTE RESOLUTION. Subject to the terms of Section 13.5, the procedures of this Section 13 will control the resolution of any and all disputes between the Parties including, without limitation, any dispute relating to disputed monies owing or breach of warranty (each, a “Dispute”). The Parties will seek to resolve each Dispute as follows:
13.1 First Level Performance Review: Each Party’s Relationship Manager will meet as often as will reasonably be required by either Party to review the performance of either Party under this Agreement and to resolve the Dispute. If these representatives are unable to resolve the Dispute within ten (10) business days after the initial request for a meeting, then the Parties will submit the Dispute to an executive level performance review as provided in Section 13.2 below.
13.2 Executive Level Performance Review: Face-to-face negotiations will be conducted by a senior executive officer of each Party (or such other executive as a Party may designate). If these representatives are unable to resolve the Dispute within five (5) business days after the Parties have commenced negotiations or ten (10) business days have passed since the initial request for a meeting at this level, then the Parties may jointly engage the services of a third-party mediator.
13.3 Arbitration: If the Parties are unable to resolve the Dispute through the alternative mechanisms described above, the Parties shall submit the Dispute for resolution through binding arbitration, except as otherwise provided in Section 13.5. The Parties agree and consent to such arbitration proceeding taking place in Wilmington, Delaware, and in accordance with the Commercial Arbitration Rules of the American Arbitration Association, except that discovery may be had in accordance with the Federal Rules of Civil Procedure. The Parties shall be permitted at least six (6) months from the date of the filing of the Arbitration Demand to conduct discovery. The arbitration proceedings shall be conducted by a panel of three (3) impartial arbitrators, with each Party selecting one (1) of the impartial arbitrators and those two (2) arbitrators then selecting the third impartial arbitrator, all such selections to be made through the procedures of the American Arbitration Association. At least one (1) arbitrator must be an attorney licensed under the Laws of Pennsylvania and at least one (1) arbitrator (may be the same Person as the Pennsylvania attorney) must have direct and substantial experience in the industry pertinent to the subject matter of the Dispute. Judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof; provided, however, in rendering its decision, the arbitrators shall be bound by the Laws of the Commonwealth of Pennsylvania (without regard to its conflicts of laws provisions) and by the terms and conditions of this Agreement setting forth the rights and responsibilities of the Parties. The decision of the arbitration panel shall be accompanied by a written opinion setting forth the factual and legal bases for the award. The arbitrators shall issue such written decision within thirty (30) days of the conclusion of the arbitration hearing. The arbitrators appointed hereunder shall not have the power to award punitive damages. Service of a petition to confirm the arbitration award may be made by United States mail, postage prepaid, or by any regularly conducted commercial express mail service, to the attorney for the Party or, if not so represented, to the Party at the address set forth herein, or to the Party’s last known business address. The prevailing Party in any action related to or arising under this Agreement shall be entitled to reasonable attorneys’ fees and costs.
13.3.1 For any Dispute in which the amount in controversy is at least One Million Dollars ($1,000,000), the following additional procedures apply:
(a) a certified court reporter shall transcribe the arbitration hearings; The Parties initially split the cost of the reporter, but such costs shall ultimately be awarded to the Party prevailing in the arbitration proceeding; and
(b) either Party may take an appeal from the final decision by making a written demand within twenty (20) days of the award.
13.3.2 Any such appeal shall be conducted as follows:
(a) such appeals are limited to issues of Law (i.e., the original award (1) contains material errors of Law such that the original award is not founded on any appropriate legal basis; (2) is based on factual findings clearly unsupported by the record; or (3) is subject to one or more grounds set forth in Section 10 of the Federal Arbitration Act or 42 Pa. C.S.A. §7341 for vacating an award);
(b) the Person hearing the appeal shall be a former federal judge mutually agreed to by the Parties or selected through the procedures of the American Arbitration Association. The former judge shall act as the appellate arbitrator;
(c) the submissions on appeal are limited to (1) the record of the arbitration, (2) a 30-page brief by the appellant, (3) a 30-page brief by the appellee and (4) a 10-page response by the appellant. The appellate arbitrator will set the dates for submission of the briefs. Oral argument may be heard at the discretion of the appellate arbitrator;
(d) the appellate arbitrator shall render a written decision within sixty (60) days of the final submission;
(e) during the pendency of the arbitration appeal, the Parties agree to suspend any running of the time to seek enforcement of the original award. The Parties also agree to waive any appeal to state or federal courts based on the grounds set forth in Section 10 of the Federal Arbitration Act for vacating an award and 42 Pa. C.S.A. § 7341;
(f) the appellate arbitrator must award costs and attorneys’ fees to the prevailing Party; and
(g) the decision of the appellate arbitrator shall be final.
13.4 Continued Performance: Each Party acknowledges that the timely and complete performance of its obligations pursuant to this Agreement is critical to the business and operations of the other Party. Accordingly, in the event of a Dispute, each Party shall continue to so perform all of its obligations under this Agreement, in good faith during the resolution of such Dispute unless and until (a) authority to stop doing so is granted or conferred by a court of competent jurisdiction or (b) this Agreement is terminated in accordance with the provisions hereof.
13.5 Equitable Relief: Notwithstanding anything contained in this Agreement to the contrary, the Parties will be entitled to seek injunctive relief, specific performance or other equitable relief whenever the facts or circumstances would permit a Party to seek equitable relief in a court of competent jurisdiction. Without limiting the generality of the foregoing, (a) Evolent agrees that there would be irreparable harm to ABCO in the event of any such breach by Evolent of Section 6.2 and ABCO shall be entitled to (i) injunctive relief to prevent breaches of Section 6.2, (ii) specific performance of this Agreement, and (iii) any other remedies provided by Law or equity, including without limitation an award for damages, and (b) ABCO agrees that there would be irreparable harm to Evolent in the event of any such breach by ABCO of Section 6.1.1, and Evolent shall be entitled to (i) injunctive relief to prevent breaches of Section 6.1.1, (ii) specific performance of this Agreement, and (iii) any other remedies provided by Law or equity, including without limitation an award for damages.
14. MISCELLANEOUS PROVISIONS.
14.1 Good Faith and Mutual Agreement: Unless otherwise expressly stated in such provision, if a provision in this Agreement calls for the consent of a Party or the mutual agreement of the Parties, the Parties agree that each will act in good faith, will not unreasonably withhold their consent and that deference shall be given to the other Party’s reasonable business requirements, and the requirements of the Parties’ respective regulators and internal controls procedures.
14.2 Independent Contractor: The relationship of ABCO to Evolent shall at all times be that of an independent contractor. Nothing in this Agreement shall be construed to create any partnership, association, joint venture, or employment between the Parties. Each Party shall have the sole and exclusive control over the labor and employee relations policies and policies relating to wages, hours, working conditions, benefits, or other conditions of its personnel and shall be responsible and liable for the acts and omissions of its employees, agents and contractors.
14.3 Assignability: Evolent has entered into this Agreement because of the expertise of ABCO, and ABCO understands that the obligations of ABCO are personal to ABCO and may not be assigned to any other company, partnership or individual without the express written consent of Evolent; provided, however, that no consent shall be required if an assignment is made in connection with a sale of all or substantially all of ABCO’s assets or stock, or in connection with a merger or Change of Control. Evolent may assign this Agreement (including the licenses granted pursuant to this Agreement) to any Affiliate of Evolent as part of an internal reorganization or in connection with a sale of substantially all of its assets or stock, or in connection with a merger or Change of Control.
14.4 Governing Law and Jurisdiction: This Agreement shall be governed by and construed and enforced in accordance with the Laws of the Commonwealth of Pennsylvania, without regard to that state or any other state’s conflicts of law rules. Each Party irrevocably consents to the personal jurisdiction of the state and federal courts located in Wilmington, Delaware for any suit or action arising from or related to this Agreement.
14.5 Force Majeure: Neither Party shall be deemed in default of this Agreement to the extent that performance of their obligations or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, act of government, or any other cause beyond the control of such Party, provided that such Party gives the other Party written notice thereof promptly and, in any event, within fifteen (15) days of discovery thereof, and uses its commercially reasonable efforts to cure any such breach.
14.6 Entire Agreement: This Agreement and its exhibits, schedules, and attachments constitute the entire understanding between the Parties with respect to the subject matter hereof and supersede all prior written or oral representations with respect to the subject matter hereof. This Agreement may not be modified, amended, or otherwise changed in any manner except by a written instrument executed by the Party against whom enforcement is sought.
14.7 Cumulative Remedies: Except as expressly provided in this Agreement, (a) remedies for breach are cumulative and may be exercised separately or concurrently, (b) the exercise of one remedy is not an election of that remedy to the exclusion of others, and (c) the provision for any remedy in this Agreement shall not affect remedies otherwise available at Law or in equity.
14.8 No Third Party Beneficiaries: The Parties do not intend that this Agreement creates any right or cause of action in or on behalf of any Person other than Evolent and ABCO.
14.9 Headings: Section headings have been included in this Agreement merely for convenience of reference. They are not to be considered part of, or to be used in interpreting this Agreement.
14.10 Binding Effect: The covenants and conditions contained herein will apply to and bind the successors, representatives, and permitted assigns of the Parties.
14.11 Expenses: Each Party shall be responsible for its own legal, accounting and other transaction costs relating to the transactions contemplated in this Agreement.
14.12 Notices: All notices required to be given hereunder shall be in writing and given hereunder, as elected by the Party giving notice, as follows: (a) by personal delivery, (b) sent by overnight courier with confirmation of receipt, or (c) dispatched by certified or registered mail, return receipt requested, postage prepaid, addressed to the Parties as follows.
If to Evolent: Evolent, Inc.
800 N. Glebe Road, Suite 500
Arlington, VA 22203
Attention: President
Morgan Lewis & Bockius, LLP
225 Franklin Street
Boston, MA 02110
Attention: Mark B. Stein, Esq.
Fax No.: (617) 341-7701
If to ABCO: The Advisory Board Company
2445 M St. NW
Washington, DC 20037
Attention: General Counsel
Notice shall be deemed given (a) on the date of receipt if delivered personally; (b) on the business day following delivery of such notice to the overnight courier; or (c) three (3) business days after deposit in the mail in accordance with the foregoing. Either Party may change the address to which to send notices by notifying the other Party of such change of address in writing in accordance with the foregoing.
14.13 Press Releases: No press releases or other public announcements concerning the transactions contemplated by this Agreement shall be made by ABCO or Evolent without the prior written consent of both Parties; provided, however, that nothing herein shall prevent a Party from supplying such information or making statements as required by governmental authority or in order for a Party to satisfy its legal obligations (prompt notice of which shall in any such case be given to the other Party).
14.14 Severability: Any terms or provisions of this Agreement that shall prove to be invalid, void or illegal shall in no way affect, impair, or invalidate any other term or provision herein and such remaining terms and provisions shall remain in full force and effect provided that its general purposes are still reasonably capable of being effected. All such terms or provisions which are determined by a court of competent jurisdiction or other dispute resolution proceeding to be invalid, void or illegal shall be construed and limited so as to allow the maximum effect permissible by Law.
14.15 Waiver: The waiver by either Party to this Agreement of any one or more defaults, if any, on the part of the other, shall not be construed to operate as a waiver of any other or future defaults under the same or different terms, conditions or covenants contained in this Agreement.
IN WITNESS WHEREOF, the Parties have executed this Agreement effective as of the date first written above.
THE ADVISORY BOARD COMPANY EVOLENT HEALTH, INC.
/s/ Evan Farber
By: Evan Farber By:
Its: General Counsel Its:
[Signature Page to Amended and Restated Services, Reseller and Non-Competition Agreement]
IN WITNESS WHEREOF, the Parties have executed this Agreement effective as of the date first written above.
THE ADVISORY BOARD COMPANY EVOLENT HEALTH, INC.
/s/ Frank Williams
By: By: Frank Williams
Its: Its: CEO
| Not mentioned |
622_nda-15 | 622_nda-15_0 | Q: Agreement shall not grant Receiving Party any right to Confidential Information.
Text: Exhibit 10.16
AMENDED AND RESTATED
SERVICES, RESELLER AND NON-COMPETITION AGREEMENT
THIS AMENDED AND RESTATED SERVICES, RESELLER AND NON-COMPETITION AGREEMENT (this “Agreement”) is made and entered into effective as of June 27, 2013 (the “Effective Date”) by and between The Advisory Board Company, a Delaware corporation (“ABCO”), and Evolent Health, Inc. (f/k/a VPHealth, Inc.), a Delaware corporation (“Evolent”), (each, a “Party”, and collectively, the “Parties”).
RECITALS
WHEREAS, ABCO and Evolent entered into a Services, Reseller and Non-Competition Agreement (the “Original Agreement”), effective as of August 31, 2011 (the “Original Effective Date”);
WHEREAS, since entering into the Original Agreement, Evolent and ABCO have continued to explore ways to improve the efficiency and implementation of their relationship; and
WHEREAS, as a result of the foregoing efforts, the Parties have agreed to amend and restate the Original Agreement as set forth in this Agreement.
NOW, THEREFORE, in consideration of the above recitals, the terms and conditions hereinafter set forth, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto agree as follows:
1. DEFINITIONS. For purposes of this Agreement:
1.1 “ABCO Restricted Products and Services” means (a) care management services including, but not limited to, traditional disease management services, direct patient outreach and other service-based care management offerings (e.g., readmissions management teams, nurse call centers, on-site care management teams); (b) care management workflow software designed for and used by provider-owned payor organizations or other entities intending to conduct active care management campaigns targeted at managing population health/longitudinal outcomes (i.e, solutions that are the same as or substantially similar to (i.e. functionality that is redundant in substantial and material respects with) HealthPlaNet); (c) services primarily intended to support cost reduction and benefit changes for health system employees; (d) consulting services comparable and competitive with blueprint consulting services offered by Evolent as of the Effective Date (“Blueprint Services”), (e) Exclusive TPA Services or (f) Crimson Care Registry products. For the avoidance of doubt, Restricted Products and Services does not include behavioral health-related services or software (e.g., Askesis Development Group software), services similar to those offered by UPMC WorkPartners (e.g., “Take-a-Healthy-Step” or similar health and wellness programs, occupational medicine, on-site clinic implementation and administration, employee assistance services, absence management or workers’ compensation services), or software or solutions similar to those offered by EBenefits Solutions, LLC.
1.2 “Active Sales Process”, with respect to any Person as of any date on which Evolent proposes to add such Person to the list of Evolent Top Prospects, means such Person (a) is not an Evolent Client as of such date and (b) either (i) has purchased ABCO Restricted Products and Services from ABCO prior to such date or (b) was engaged in active discussions with ABCO about acquiring ABCO Restricted Products and Services (including, but not limited to, a review of the applicable offering of ABCO Restricted Products and Services) as of such date.
1.3 “Affiliate” means any Person which Controls, is Controlled by, or is in common Control with, another Person.
1.4 “Business Plan” has the meaning set forth in that certain Intellectual Property License and Data Access Agreement between the Parties.
1.5 “Change of Control” with respect to any entity means a transaction or series of related transactions in which a Person, or a group of related Persons, acquires from stockholders of the subject entity, the entity’s shares representing more than fifty percent (50%) of the outstanding voting power of such entity.
1.6 “Confidential Information” means any and all technical and non-technical information, whether conveyed verbally, in writing, electronically or by any other means, including, but not limited to, trade secrets, source code, technology, know-how and proprietary information, techniques, plans or any other information relating to any research project, analysis, work in process, future development, scientific, engineering, marketing or business plans or financial, contractual or personnel matters relating to either Party or its present or future products, services, sales, suppliers, identity of and information relating to customers and prospective customers, customer or prospect list, prospective employees, investors or affiliates or other proprietary information disclosed or otherwise supplied in confidence by either Party to the other, to the extent that such information is provided pursuant to this Agreement by one Party to the other Party and is marked “confidential” or “proprietary” or that should be reasonably understood by the Receiving Party (based on the nature of the information or the context in which the information is disclosed) should be considered confidential. Confidential Information will not include information to the extent that: (a) such information is or becomes publicly available other than through any act or omission of either Party in breach of this Agreement; (b) such information was received by the Receiving Party, other than under an obligation of confidentiality, from a third party who had no obligation of confidentiality to the other Party; (c) such information was in the possession of the Receiving Party at the time of the disclosure or was independently developed by the Receiving Party, as reflected by the Receiving Party’s internal, written and dated documentation; or (d) an applicable regulation, court order or other legal process requires the disclosure of such information, provided that prior to such disclosure the Disclosing Party will give notice to the other Party so that the other Party may take reasonable steps to oppose or limit such disclosure, so that the Disclosing Party does not disclose any more information than necessary to comply with such legal process. The burden of proof that Confidential Information falls into any one of the above exemptions will be borne by the Party claiming such exemption with documentation or other credible evidence.
1.7 “Control” as used with respect to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities, by agreement or otherwise.
1.8 “Evolent Clients” means entities under a current contract with Evolent for an implementation and/or long-term services contract. 1.9 “Evolent Top Prospects” means, as of any date, up to twenty (20) potential Evolent customers in the Evolent sales pipeline identified by Evolent that are not Evolent Clients as of such date, and (a) are engaged in active discussions with Evolent regarding purchasing Evolent products and services and/or (b) are under a current contract with Evolent for Blueprint Services or other services that do not constitute implementation or long-term services; provided, however, that (i) the list of such potential Evolent customers may be updated by Evolent on a quarterly basis, and ABCO shall have the opportunity upon receipt of each such quarterly update to notify Evolent if any of the Persons added to such list are in an Active Sales Process with ABCO and shall therefore be removed from such list, and (ii) no Person shall remain on the list of Evolent Top Prospects for more than (x) twelve (12) consecutive months, in the case of potential Evolent customers without a signed agreement with Evolent, or (y) twenty-four (24) consecutive months, in the case of potential Evolent Clients that signed an agreement for Blueprint Services with Evolent before or within twelve (12) months of being added to the list of Evolent Top Prospects.
1.10 “Exclusive TPA Services” means certain services as set forth on Schedule 1 of the UPMC Reseller Agreement (as in effect on the Effective Date), to the extent that UPMC Health Plan, Inc., a Pennsylvania nonprofit corporation (“UPMC”), has the exclusive right to provide such services to Evolent, for resale by Evolent to its customers.
1.11 “Disclosing Party” means a Party that provides Confidential Information to the other Party, or the other Party’s Affiliates.
1.12 “Governmental Authority” means any federal, state, municipal, local, territorial, or other governmental department, regulatory authority, judicial or administrative body, whether domestic, foreign or international.
1.13 “Law” means all international, federal, country, state, provincial, local and other laws, rules and regulations, declaration, decree, directive, legislative enactment, order, code, ordinance, regulation, rule or other binding restriction of or by any Governmental Authority, as the same are promulgated, supplemented or amended from time to time.
1.14 “Loss” individually, and collectively, “Losses” means all claims, liabilities, obligations, losses, costs, expenses (including, without limitation, legal, accounting and similar expenses), litigation, proceedings, fines, taxes, levies, imposts, duties, deficiencies, assessments, charges, penalties, allegations, demands, damages (including, but not limited to, actual, punitive or consequential, foreseen or unforeseen, known or unknown, fixed or contingent, and matured or unmatured), civil and criminal violations of Law, settlements and judgments of any kind or nature whatsoever.
1.15 “Person” means any individual, corporation, partnership, firm, joint venture, association, limited liability company, limited liability partnership, joint-stock company, trust, joint venture, unincorporated organization, governmental, judicial or regulatory body, business unit, division or any other business entity, organization or Governmental Authority.
1.16 “Receiving Party” means a Party that receives Confidential Information from the other Party or the other Party’s Affiliates.
1.17 “Statement of Work” or “SOW” means an agreement by and between ABCO and Evolent that contains the detailed description of services, scope, specifications, pricing, implementation plan, timetables, milestones, and other terms and conditions for each procurement of services, as applicable.
1.18 “UPMC Reseller Agreement” means that certain Second Amended and Restated Reseller, Services and Non-Competition Agreement between UPMC and Evolent dated as of [the Effective Date].
2. SERVICES TO BE PROVIDED BY ABCO.
2.1 General Services:
2.1.1 Minimum Purchase. The Parties hereby acknowledge and agree that Evolent has purchased from ABCO a minimum of Two Hundred Thousand Dollars ($200,000) of services (as described in Section 2.2.1) (the “Original Minimum Purchase”) for delivery between the Original Effective Date and the first anniversary thereof.
2.1.2 Statements of Work. The specific description, price, service levels (if applicable) and other project, service, and/or customer-specific terms for a particular service that may be provided by ABCO to Evolent (each, a “Service”, and collectively, the “Services”) shall be set forth in a Statement of Work that will be created on a project by project basis.
2.2 Right of First Offer and Process for Invoking:
2.2.1 Applicable Services. Throughout the Term, ABCO shall have the right of first offer to provide the following services to Evolent and Evolent’s customers:
(a) Physician practice management consulting and other physician practice management services;
(b) Physician incentive design services;
(c) Medical home development consulting services; and
(d) Performance analytics shared with physicians with the intent to improve outcomes.
2.2.2 Process for Exercising Right of First Offer. Evolent shall notify ABCO in writing in the event Evolent desires to receive any of the above services (“First Offer Services”). ABCO shall have a period of thirty (30) days (“First Offer Services Evaluation Period”) within which to conduct its evaluation and diligence with respect to providing such First Offer Services. Evolent shall cooperate with ABCO and provide reasonable assistance and information to ABCO to enable ABCO to conduct its evaluation. Within five (5) business days after the expiration of such First Offer Services Evaluation Period, ABCO shall notify Evolent in writing whether or not it wishes to provide such services to Evolent. If ABCO elects to provide such First Offer Services, Evolent agrees to engage in good faith negotiations with ABCO, on an exclusive basis for a period of sixty (60) days, regarding the specific terms covering such First Offer Services.
2.3 Failure to Execute a Service Agreement for the VBC Innovation Center: The Parties acknowledge and agree that it was their intent as of the Original Effective Date to enter into a service agreement under which Evolent would engage ABCO to provide certain consulting, development and support services in connection with the creation, launch, implementation and ongoing support of a Value-Based Care Innovation Center (the “VBC Innovation Center”), in consideration for which Evolent would pay ABCO a fixed fee of Eight Hundred Thousand Dollars ($800,000) per year (“Fixed Fee”) for each of the first two (2) years of the term of such VBC Innovation Center service agreement. The Parties acknowledge and agree that, notwithstanding the fact that they negotiated with diligence and in good faith the specific terms and conditions of such service agreement, the Parties were unable to reach an agreement with respect to the VBC Innovation Center. Accordingly, the Original Minimum Purchase is increased to One Million Two Hundred Thousand Dollars ($1,200,000) (the “Minimum Purchase”) as follows: (a) between the Original Effective Date and the second anniversary thereof, Evolent shall have purchased from ABCO a minimum of Seven Hundred Thousand Dollars ($700,000) of services for delivery on or prior to such second anniversary of the Original Effective Date), and (b) inclusive of the purchases described in clause (a), between the Original Effective Date and the third anniversary thereof, Evolent shall have purchased from ABCO a minimum of One Million Two Hundred Thousand Dollars ($1,200,000) of services for delivery on or prior to such third anniversary of the Original Effective Date); provided that, for purposes of this sentence, “services” shall include consulting, software, professional or analytic services provided from time to time by ABCO to Evolent (other than services in connection with the provision of any office space by or on behalf of ABCO to Evolent) or, pursuant to a joint written proposal by ABCO and Evolent, to any Evolent Client.
2.4 Reservation of Rights: For the avoidance of doubt, Evolent is not precluded from offering and providing services directly to its customers, subject (a) to (i.e., after ABCO has had the full opportunity to exercise) ABCO’s right of first offer to provide any First Offer Services in accordance with Section 2.2) and (b) to Evolent’s compliance with its non-competition obligations as set forth in Section 6.2.
2.5 Designation of Relationship Managers: In order to support the launch and ongoing success of the exclusive reseller relationship between ABCO and Evolent, each Party agrees to designate a senior level individual who will serve as the primary liaison and “go to” contact and relationship manager for such Party (each, a “Relationship Manager”). Each Party’s Relationship Manager’s role and responsibilities would include: (a) facilitating day-to-day communications between the Parties regarding customer-facing activities, such as marketing, promotional and sales activities and preparing and submitting bids, proposals, responses to requests for proposals, fee estimates, Statements of Work and project plans; (b) receiving and submitting requests between the Parties for information and/or assistance; (c) overseeing the efficient knowledge transfer and flow of information between the Parties; (d) facilitating communications between the appropriate individuals within Evolent and ABCO, with respect to product and service offering development; and (e) providing the first level of performance review or escalation in the event of a Dispute as provided in Section 13. The Relationship Managers will meet regularly, but no less frequently than monthly, as reasonably necessary, to maintain a good working relationship between the Parties. Each Party may change its Relationship Manager by giving the other Party reasonable notice as long as the change is implemented in a manner that does not cause any significant disruption to each Party’s business operations and business relationship.
3. FEES; PAYMENT TERMS; SHORTFALL.
3.1 Fees; Timing of Payments: Evolent shall pay ABCO the applicable fees for the Services performed by ABCO pursuant to a Statement of Work, as follows: (a) unless the Parties otherwise agree in writing, a deposit of 50% of the total fees for the particular project shall be paid upon signing of the Statement of Work; (b) ABCO will submit an invoice to Evolent for the balance upon completion of the work; and (c) Evolent shall pay ABCO for such invoiced amount within thirty (30) days after receipt of such invoice.
3.2 Minimum Purchase and Shortfall: Evolent agrees to pay ABCO the Minimum Purchase. If the aggregate amount of Services actually procured by Evolent from ABCO is not equal to or greater than (a) Seven Hundred Thousand Dollars ($700,000) of services for delivery on or prior to the second anniversary of the Original Effective Date or (b) inclusive of the purchase described in clause (a), the Minimum Purchase of services for delivery on or prior to the third anniversary of the Original Effective Date, Evolent shall pay ABCO the amount of the shortfall (i.e., the difference between Seven Hundred Thousand Dollars ($700,000) or the Minimum Purchase amount, as applicable, less the sum of: (a) the aggregate fees for the actual amount of Services procured; and (b) any Credits (as provided in the next sentence) (the “Shortfall”), if any, on or before August 31, 2013 or August 31, 2014, as applicable. In the event that ABCO refuses or fails, without reasonable cause, to provide any of the Services requested by Evolent (provided the scope of the Services requested is within the scope customarily provided by ABCO), the fees that would otherwise have been applicable had ABCO agreed to provide such Services would count as a “Credit”. As of the date hereof, no such Credits have accrued.
4. TERM AND RENEWAL. The initial term of this Agreement shall commence on the Effective Date and unless sooner terminated in accordance with the terms hereof, shall continue until August 31, 2016 (“Initial Term”). Thereafter, this Agreement shall automatically be renewed for another five-year term (“Renewal Term”) unless either Party elects to terminate this Agreement by providing the other Party with written notice of termination one hundred eighty (180) days prior to the expiration of the current term. (“Initial Term” and “Renewal Term” collectively, the “Term”).
5. REFERRAL FEES, SOLICITATION AND COMPETITION AND POST-CLOSING SERVICES.
5.1 Referral Fees:
5.1.1 During the Term, ABCO will pay Evolent a sales referral fee for any sale made by ABCO that resulted from a “net” new sale from a new customer that was not already in ABCO’s sales pipeline (i.e., a “warm lead”) or a then-current customer of ABCO generated directly by Evolent’s efforts and without any assistance from any ABCO employee or representative (including any Evolent employee that serves on the Board of Directors of ABCO), equal to 5% of the total ABCO revenue from the new customer during the initial twelve (12) months of services under the services agreement with such new customer.
5.1.2 During the Term, Evolent will pay ABCO a sales referral fee for any sale made by Evolent that resulted from a “net” new sale from a new customer that was not already in Evolent’s sales pipeline (i.e., a “warm lead”) or a then-current customer of Evolent generated directly by ABCO’s efforts and without any assistance from any Evolent employee or representative (including any ABCO employee that serves on the Board of Directors of Evolent), in accordance with the following terms:
(a) ABCO will receive a one-time referral fee for any “employee health” diagnostic, consulting or broker services provided by Evolent to a Covered Health System, equal to the lesser of $20,000 or 5% of the total Evolent revenue from the Covered Health System during the initial twelve (12) months of services under the service agreement with such Covered Health System.
(b) ABCO will receive $50,000 per year for three (3) years for each health system joining Evolent as an Employee Health Platform Customer. An “Employee Health Platform Customer” is defined as a health system purchasing diagnostic/consulting services and ongoing medical management/health plan services (i.e., care management, HealthPlaNet care management application, and the TPA platform, etc.).
(c) ABCO will receive $100,000 per year for three (3) years for a health system joining Evolent as a Platform Health Plan Customer. A “Platform Health Plan Customer” is defined as a health system purchasing ongoing medical management services, ongoing health plan outsourcing services (i.e., TPA) and health plan management services for purposes of a licensed insurance entity with at least fifty thousand (50,000) lives (beyond the employee population).
(d) With the exception of making the introduction (either through an email or an in-person meeting) (to generate the “warm lead”), ABCO would not be expected to perform any actual duties or incur actual cost to receive a referral fee.
(e) The annual referral fees for each referral would be capped at the lesser of (x) 5% of annual revenue generated by Evolent for the respective customer and (y) the $50,000 or $100,000 figures described above, as applicable.
6. SOLICITATION AND COMPETITION.
6.1 Scope:
6.1.1 Throughout the Term, ABCO agrees not to offer any ABCO Restricted Products and Services to (a) any Evolent Clients or (b) any Evolent Top Prospects; provided, however, that ABCO shall not be restricted from making any such offer to any Evolent Top Prospect or Evolent Client with whom ABCO was, at the time such Person was identified as an Evolent Top Prospect or became an Evolent Client, engaged in an Active Sales Process. The foregoing restrictions shall not apply in the event of a Change of Control of Evolent or in the event that ABCO ceases to be a shareholder of Evolent.
6.1.2 None of the foregoing would prohibit ABCO from:
(a) Marketing, offering, licensing or selling versions of any of its Crimson Population Risk Management products, or the successors to any such products, provided that such products, or the successors to any such products, are not the same as or substantially similar to (i.e., includes functionality that is redundant in substantial and material respects with) HealthPlaNet as it exists as of the Effective Date.
(b) Supporting employers with care management related best practices and research.
(c) Offering traditional “dedicated advisor” support in conjunction with ABCO’s traditional business intelligence offerings.
(d) Marketing, offering, licensing or selling its employer health product.
(e) Providing physician management consulting and other physician management services.
6.2 Restrictions Relating to Certain ABCO Products and Services: Evolent shall not, until the earlier of (x) ABCO’s ceasing to be a shareholder of Evolent or (y) the seventh (7 ) anniversary of the date of this Agreement, promote, market, provide, offer or sellth (a) unbundled software applications, software tools or other similar technologies (including, without limitation, software as a service, analytics technology or data services) (each, a “Technology Solution”), (b) consulting services that are not intended to lead to or be a part of a Blueprint Services engagement, implementation contract and/or long-term services contract, or (c) any best practices membership programs or unbundled or bundled physician practice management and other physician practice management consulting services, in each case referred to in this clause (c) that are substantially similar to, or that are competitive with, ABCO’s best practices membership programs or physician practice management or other physician practice management consulting services that are offered by ABCO as of the date first written above. For the avoidance of doubt, “unbundled” means on a stand-alone basis, instead of “bundled”, which contemplates that the Technology Solution is both (i) offered as part of a “packaged”, integrated offering, in conjunction with other Evolent products or services that are not Technology Solutions (and not only services that constitute customary software, data and end user support-related services), such as the Exclusive TPA Services, and (ii) incidental to the provision of such other Evolent products or services. Notwithstanding any other provision hereof, the foregoing restrictions in this Section 6.2 shall survive a Change of Control of Evolent for seven (7) years from the date of this Agreement; provided, however, that prior to the seventh (7 ) anniversary of the date of thisth Agreement, the acquiring party in a Change of Control of Evolent shall be not be subject to the foregoing restrictions with respect to any Technology Solutions or consulting services, in each case, that are unrelated to the Evolent assets acquired.
6.3 Non-Solicitation or Hiring: During the Term and for a period of eighteen (18) months thereafter, Evolent shall not solicit or hire any of ABCO’s employees without ABCO’s prior written consent.
7. EXCLUSIVE RESELLER RIGHTS FOR FUTURE PRODUCTS.
In the event that Evolent creates a discrete or segregable product or service that can be sold to healthcare providers, Evolent shall notify ABCO in writing of such new offerings (“New Products”). ABCO shall have a period of ninety (90) days (“New Products Evaluation Period”) within which to conduct its evaluation and diligence with respect to providing such New Products. Evolent shall cooperate with ABCO and provide reasonable assistance and information to ABCO to enable ABCO to conduct its evaluation. Within five (5) business days after the expiration of such New Products Evaluation Period, ABCO shall notify Evolent in writing whether or not it wishes to have the right to resell such New Products. If ABCO elects to resell such New Products, Evolent and ABCO agree to negotiate in good faith on an exclusive basis for one hundred twenty (120) days the terms of a reseller agreement, under which ABCO would be the exclusive distributor (in addition to Evolent) of such New Products.
8. CONFIDENTIALITY.
8.1 Confidential Information: ABCO acknowledges that in connection with its rights and obligations under this Agreement it may gain access to the Confidential Information of Evolent and its customers and Affiliates. Evolent acknowledges that in connection with its rights and obligations under this Agreement, it may gain access to the Confidential Information of ABCO and its customers and Affiliates.
8.2 Non-Disclosure: The Receiving Party may disclose the Disclosing Party’s Confidential Information strictly on a need-to-know basis to only those personnel, including employees of the Receiving Party’s contractors, who require access to the Disclosing Party’s Confidential Information in order to perform or derive benefit from the Services or otherwise meet its obligations under this Agreement. The Receiving Party agrees: (a) to hold the Disclosing Party’s Confidential Information in strict confidence, using the same degree (but no less than a reasonable degree) of care and protection that it exercises with its own Confidential Information of a similar nature; (b) not to directly or indirectly disclose or otherwise make available any Confidential Information of the Disclosing Party to a third party; and (c) not to copy or use the Disclosing Party’s Confidential Information for any purpose other than as necessary to fulfill the Receiving Party’s obligations or exercise its rights under this Agreement. Each Receiving Party is responsible for ensuring that its employees, agents and contractors strictly abide by the requirements of confidentiality and restrictions on use as provided in this Section 8.2 and shall be liable to the Disclosing Party for any acts or omissions of its employees, agents and independent contractors relating to the Disclosing Party’s Confidential Information. The Receiving Party is allowed to disclose Confidential Information of the Disclosing Party to the extent required by Law or by the order or a court of similar judicial or administrative body with jurisdiction, provided that the Receiving Party notifies the Disclosing Party of such required disclosure promptly and in writing and cooperates with the Disclosing Party, at the Disclosing Party’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure. The provisions of this Section 8 shall survive beyond the expiration or termination of this Agreement.
8.3 Injunctive Relief: The Parties acknowledge and agree that monetary damages may be inadequate to compensate for a breach of the provisions contained in this Section 8 or other confidentiality provisions of this Agreement. In the event of such breach, the injured Party shall be entitled to seek injunctive relief (without the need to post bond) and any and all other remedies available at Law or in equity. This Section 8.3 in no way limits the liability or damages that may be assessed against a Party in the event of a breach by the other Party of any of the provisions of this Section 8.
8.4 Residuals: Notwithstanding anything in this Section 8 to the contrary, subject to any applicable statutory intellectual property rights applicable to patents, trademarks or copyrights, either Party may use “Residuals” for any purpose, including without limitation, for use in development, manufacture, promotion, sale and maintenance of its products and services; provided, however, that this right to Residuals does not represent a license under any patents, copyrights or trademarks of the Disclosing Party. The term “Residuals” means any information that is retained in the unaided memories of the Receiving Party’s employees who have had access to the Disclosing Party’s Confidential Information pursuant to the terms of this Agreement.
9. WARRANTIES.
9.1 Authority/No Conflict: ABCO represents and warrants that (a) it has the power and authority to enter into and perform its obligations under this Agreement without conflict with, default under, or violation of any Law, regulation, or agreement binding upon it, and (b) this Agreement has been duly authorized by all necessary organizational action, and duly and validly executed and delivered by it, and constitutes its legally valid and binding obligation, enforceable in accordance with its terms.
9.2 Services: ABCO represents, warrants and covenants that the Services provided under this Agreement will be performed in a professional and workmanlike manner.
9.3 Compliance with Laws/Approvals: Each of ABCO and Evolent shall comply in all material respects with all Laws and regulations applicable to ABCO or Evolent, as applicable, in performing its obligations under this Agreement. To the extent applicable, ABCO shall be responsible for obtaining all necessary permits, licenses, and consents, including governmental approvals, required of ABCO and its contractors in connection with the performance of its obligations under this Agreement, and Evolent shall be responsible for obtaining all necessary permits, licenses, and consents, including governmental approvals, required of Evolent and its contractors in connection with the performance of its obligations under this Agreement.
9.4 Limitations of Warranty: EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, ABCO MAKES NO OTHER WARRANTY OR REPRESENTATION, ORAL, WRITTEN, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE SERVICES, INCLUDING WITHOUT LIMITATION, THEIR QUALITY, PERFORMANCE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, UNINTERRUPTED OR ERROR-FREE OPERATION OR OTHERWISE HEREUNDER. The disclaimer of warranties and limitations set forth in this Agreement constitute an essential part of this Agreement.
10. INDEMNIFICATION.
10.1 IP Indemnification: ABCO shall defend, indemnify and hold harmless Evolent and its Affiliates (other than ABCO), customers, and their respective officers, directors and employees from and against any Losses resulting from a claim that the Services provided by ABCO under this Agreement infringes or misappropriates a third party’s intellectual property rights. ABCO shall also use commercially reasonable efforts to modify the allegedly infringing Services to make it non-infringing, procure a license from the third party claiming infringement to permit Evolent to continue to use the Services, or provide Evolent with functionally equivalent and non-infringing Services. THIS SECTION 10.1 SETS FORTH ABCO’S SOLE AND EXCLUSIVE LIABILITY, AND EVOLENT’S SOLE AND EXCLUSIVE REMEDY, FOR ALLEGATIONS OR CLAIMS OF INFRINGEMENT OF THIRD PARTY RIGHTS OF ANY KIND ASSERTED AGAINST EVOLENT, ITS AFFILIATES (OTHER THAN ABCO), CUSTOMERS AND THEIR RESPECTIVE OFFICERS, DIRECTORS AND EMPLOYEES. ABCO shall not be obligated to indemnify Evolent, its Affiliates, customers, and their respective officers, directors and employees for infringement or misappropriation claims to the extent such claims arise out of use by Evolent or its customers of any of the Services in a manner other than as contemplated by the Parties under this Agreement.
10.2 ABCO’s Indemnification: ABCO hereby agrees to indemnify, defend, and hold Evolent and its Affiliates (other than ABCO), and all of their respective directors, officers, members, managers, partners, employees, agents, successors and assigns, harmless from and against any Losses arising from or related to: (a) the material breach of this Agreement, including any or all SOWs, by ABCO or its personnel (including contractors); (b) breach of any of ABCO’s representations, warranties, and covenants in this Agreement; or (c) negligence or willful misconduct by ABCO or its personnel (including contractors).
10.3 Evolent’s Indemnification: Evolent hereby agrees to indemnify, defend, and hold ABCO and its Affiliates (other than Evolent), and all of their respective directors, officers, members, managers, partners, employees, agents, successors and assigns, harmless from and against any Losses arising from or related to: (a) the material breach of this Agreement, including any or all SOWS, by Evolent or its personnel (including contractors); (b) breach of any of Evolent’s representations, warranties and covenants in this Agreement; or (c) negligence or willful misconduct by Evolent or its personnel (including contractors).
10.4 Indemnification Procedure:
10.4.1 Notice of Claim. Any Party seeking indemnification hereunder (the “Indemnitee”) shall notify the Party liable for such indemnification (the “Indemnitor”) in writing of any event, omission or occurrence that the Indemnitee has determined has given or could give rise to Losses that are indemnifiable hereunder (such written notice being hereinafter referred to as a “Notice of Claims”). Such Notice of Claims shall be given promptly after the Indemnitee becomes aware of its own claim or that of a third party; provided that the failure of any Indemnitee to give notice as provided in this Section 10.4.1 shall not relieve the Indemnitor of its obligations under this Section 10. A Notice of Claims shall specify in reasonable detail the nature and any particulars of the event, omission, or occurrence giving rise to a right of indemnification. The Indemnitor shall satisfy its obligations hereunder, as the case may be, within thirty (30) days of its receipt of a Notice of Claims.
10.4.2 Process. With respect to any third party claim, demand, suit, action, or proceeding that is the subject of a Notice of Claim, the Indemnitor shall, in good faith and at its own expense, defend, contest, or otherwise protect against any such claim, demand, suit, action, or proceeding with legal counsel of its own selection (and reasonably acceptable to the Indemnitee). The Indemnitee shall have the right, but not the obligation, to participate, at its own expense, in the defense thereof through counsel of its own choice and shall have the right, but not the obligation, to assert any and all cross claims or counterclaims it may have. So long as the Indemnitor is defending in good faith any such third party claim, demand, suit, action or proceeding, the Indemnitee shall at all times cooperate, at its own expense, in all reasonable ways with, make its relevant files and records available for inspection and copying by, and make its employees available or otherwise render reasonable assistance to, the Indemnitor. In the event that the Indemnitor fails to timely defend, contest or otherwise protect against any such third party claim, demand, suit, action, or proceeding, the Indemnitee shall have the right, but not the obligation, to defend, contest, assert cross claims or counterclaims, or otherwise protect against, the same and may make any compromise or settlement thereof and be entitled to all amounts paid as a result of such third party claim, demand, suit, or action or any compromise or settlement thereof. The Indemnitor will not consent to the entry of any judgment or enter into any settlement with respect to any such third party claim, demand, suit, action or proceeding without the prior written consent of the Indemnitee, which will not be unreasonably withheld, and provided that no settlement shall require the Indemnitee to admit liability, or perform or become subject to additional obligations thereunder.
11. LIMITS OF LIABILITY. EXCEPT WITH RESPECT TO OR BREACH BY EITHER PARTY OF THE OTHER PARTY’S CONFIDENTIAL INFORMATION UNDER SECTION 8,
NEITHER EVOLENT NOR ABCO SHALL BE LIABLE FOR, NOR WILL THE MEASURE OF DAMAGES INCLUDE, ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OR AMOUNTS INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF INCOME, PROFITS, OR SAVINGS, LOSS OF DATA, OR COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES, ARISING OUT OF OR RELATING TO ITS PERFORMANCE UNDER THIS AGREEMENT UNDER ANY CAUSE OF ACTION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL EITHER PARTY’S LIABILITY EXCEED THE AMOUNT OF REVENUE ACTUALLY RECEIVED BY ABCO IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO THE CLAIM.
12. TERMINATION.
12.1 Termination for Cause: Either Party shall have the right to terminate this Agreement in the event the other Party materially violates a material provision of this Agreement and such violation is not cured or cannot be cured within thirty (30) days after written notice of such material violation.
12.2 Survival: The rights and obligations contained in Sections 1, 5 (with respect to Evolent’s payment obligations that may extend beyond the Term), 6.2, 6.3, 8, 9.4, 10, 11, 12.2, 13 and 14 shall survive any termination or expiration of this Agreement.
13. ESCALATION; DISPUTE RESOLUTION. Subject to the terms of Section 13.5, the procedures of this Section 13 will control the resolution of any and all disputes between the Parties including, without limitation, any dispute relating to disputed monies owing or breach of warranty (each, a “Dispute”). The Parties will seek to resolve each Dispute as follows:
13.1 First Level Performance Review: Each Party’s Relationship Manager will meet as often as will reasonably be required by either Party to review the performance of either Party under this Agreement and to resolve the Dispute. If these representatives are unable to resolve the Dispute within ten (10) business days after the initial request for a meeting, then the Parties will submit the Dispute to an executive level performance review as provided in Section 13.2 below.
13.2 Executive Level Performance Review: Face-to-face negotiations will be conducted by a senior executive officer of each Party (or such other executive as a Party may designate). If these representatives are unable to resolve the Dispute within five (5) business days after the Parties have commenced negotiations or ten (10) business days have passed since the initial request for a meeting at this level, then the Parties may jointly engage the services of a third-party mediator.
13.3 Arbitration: If the Parties are unable to resolve the Dispute through the alternative mechanisms described above, the Parties shall submit the Dispute for resolution through binding arbitration, except as otherwise provided in Section 13.5. The Parties agree and consent to such arbitration proceeding taking place in Wilmington, Delaware, and in accordance with the Commercial Arbitration Rules of the American Arbitration Association, except that discovery may be had in accordance with the Federal Rules of Civil Procedure. The Parties shall be permitted at least six (6) months from the date of the filing of the Arbitration Demand to conduct discovery. The arbitration proceedings shall be conducted by a panel of three (3) impartial arbitrators, with each Party selecting one (1) of the impartial arbitrators and those two (2) arbitrators then selecting the third impartial arbitrator, all such selections to be made through the procedures of the American Arbitration Association. At least one (1) arbitrator must be an attorney licensed under the Laws of Pennsylvania and at least one (1) arbitrator (may be the same Person as the Pennsylvania attorney) must have direct and substantial experience in the industry pertinent to the subject matter of the Dispute. Judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof; provided, however, in rendering its decision, the arbitrators shall be bound by the Laws of the Commonwealth of Pennsylvania (without regard to its conflicts of laws provisions) and by the terms and conditions of this Agreement setting forth the rights and responsibilities of the Parties. The decision of the arbitration panel shall be accompanied by a written opinion setting forth the factual and legal bases for the award. The arbitrators shall issue such written decision within thirty (30) days of the conclusion of the arbitration hearing. The arbitrators appointed hereunder shall not have the power to award punitive damages. Service of a petition to confirm the arbitration award may be made by United States mail, postage prepaid, or by any regularly conducted commercial express mail service, to the attorney for the Party or, if not so represented, to the Party at the address set forth herein, or to the Party’s last known business address. The prevailing Party in any action related to or arising under this Agreement shall be entitled to reasonable attorneys’ fees and costs.
13.3.1 For any Dispute in which the amount in controversy is at least One Million Dollars ($1,000,000), the following additional procedures apply:
(a) a certified court reporter shall transcribe the arbitration hearings; The Parties initially split the cost of the reporter, but such costs shall ultimately be awarded to the Party prevailing in the arbitration proceeding; and
(b) either Party may take an appeal from the final decision by making a written demand within twenty (20) days of the award.
13.3.2 Any such appeal shall be conducted as follows:
(a) such appeals are limited to issues of Law (i.e., the original award (1) contains material errors of Law such that the original award is not founded on any appropriate legal basis; (2) is based on factual findings clearly unsupported by the record; or (3) is subject to one or more grounds set forth in Section 10 of the Federal Arbitration Act or 42 Pa. C.S.A. §7341 for vacating an award);
(b) the Person hearing the appeal shall be a former federal judge mutually agreed to by the Parties or selected through the procedures of the American Arbitration Association. The former judge shall act as the appellate arbitrator;
(c) the submissions on appeal are limited to (1) the record of the arbitration, (2) a 30-page brief by the appellant, (3) a 30-page brief by the appellee and (4) a 10-page response by the appellant. The appellate arbitrator will set the dates for submission of the briefs. Oral argument may be heard at the discretion of the appellate arbitrator;
(d) the appellate arbitrator shall render a written decision within sixty (60) days of the final submission;
(e) during the pendency of the arbitration appeal, the Parties agree to suspend any running of the time to seek enforcement of the original award. The Parties also agree to waive any appeal to state or federal courts based on the grounds set forth in Section 10 of the Federal Arbitration Act for vacating an award and 42 Pa. C.S.A. § 7341;
(f) the appellate arbitrator must award costs and attorneys’ fees to the prevailing Party; and
(g) the decision of the appellate arbitrator shall be final.
13.4 Continued Performance: Each Party acknowledges that the timely and complete performance of its obligations pursuant to this Agreement is critical to the business and operations of the other Party. Accordingly, in the event of a Dispute, each Party shall continue to so perform all of its obligations under this Agreement, in good faith during the resolution of such Dispute unless and until (a) authority to stop doing so is granted or conferred by a court of competent jurisdiction or (b) this Agreement is terminated in accordance with the provisions hereof.
13.5 Equitable Relief: Notwithstanding anything contained in this Agreement to the contrary, the Parties will be entitled to seek injunctive relief, specific performance or other equitable relief whenever the facts or circumstances would permit a Party to seek equitable relief in a court of competent jurisdiction. Without limiting the generality of the foregoing, (a) Evolent agrees that there would be irreparable harm to ABCO in the event of any such breach by Evolent of Section 6.2 and ABCO shall be entitled to (i) injunctive relief to prevent breaches of Section 6.2, (ii) specific performance of this Agreement, and (iii) any other remedies provided by Law or equity, including without limitation an award for damages, and (b) ABCO agrees that there would be irreparable harm to Evolent in the event of any such breach by ABCO of Section 6.1.1, and Evolent shall be entitled to (i) injunctive relief to prevent breaches of Section 6.1.1, (ii) specific performance of this Agreement, and (iii) any other remedies provided by Law or equity, including without limitation an award for damages.
14. MISCELLANEOUS PROVISIONS.
14.1 Good Faith and Mutual Agreement: Unless otherwise expressly stated in such provision, if a provision in this Agreement calls for the consent of a Party or the mutual agreement of the Parties, the Parties agree that each will act in good faith, will not unreasonably withhold their consent and that deference shall be given to the other Party’s reasonable business requirements, and the requirements of the Parties’ respective regulators and internal controls procedures.
14.2 Independent Contractor: The relationship of ABCO to Evolent shall at all times be that of an independent contractor. Nothing in this Agreement shall be construed to create any partnership, association, joint venture, or employment between the Parties. Each Party shall have the sole and exclusive control over the labor and employee relations policies and policies relating to wages, hours, working conditions, benefits, or other conditions of its personnel and shall be responsible and liable for the acts and omissions of its employees, agents and contractors.
14.3 Assignability: Evolent has entered into this Agreement because of the expertise of ABCO, and ABCO understands that the obligations of ABCO are personal to ABCO and may not be assigned to any other company, partnership or individual without the express written consent of Evolent; provided, however, that no consent shall be required if an assignment is made in connection with a sale of all or substantially all of ABCO’s assets or stock, or in connection with a merger or Change of Control. Evolent may assign this Agreement (including the licenses granted pursuant to this Agreement) to any Affiliate of Evolent as part of an internal reorganization or in connection with a sale of substantially all of its assets or stock, or in connection with a merger or Change of Control.
14.4 Governing Law and Jurisdiction: This Agreement shall be governed by and construed and enforced in accordance with the Laws of the Commonwealth of Pennsylvania, without regard to that state or any other state’s conflicts of law rules. Each Party irrevocably consents to the personal jurisdiction of the state and federal courts located in Wilmington, Delaware for any suit or action arising from or related to this Agreement.
14.5 Force Majeure: Neither Party shall be deemed in default of this Agreement to the extent that performance of their obligations or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, act of government, or any other cause beyond the control of such Party, provided that such Party gives the other Party written notice thereof promptly and, in any event, within fifteen (15) days of discovery thereof, and uses its commercially reasonable efforts to cure any such breach.
14.6 Entire Agreement: This Agreement and its exhibits, schedules, and attachments constitute the entire understanding between the Parties with respect to the subject matter hereof and supersede all prior written or oral representations with respect to the subject matter hereof. This Agreement may not be modified, amended, or otherwise changed in any manner except by a written instrument executed by the Party against whom enforcement is sought.
14.7 Cumulative Remedies: Except as expressly provided in this Agreement, (a) remedies for breach are cumulative and may be exercised separately or concurrently, (b) the exercise of one remedy is not an election of that remedy to the exclusion of others, and (c) the provision for any remedy in this Agreement shall not affect remedies otherwise available at Law or in equity.
14.8 No Third Party Beneficiaries: The Parties do not intend that this Agreement creates any right or cause of action in or on behalf of any Person other than Evolent and ABCO.
14.9 Headings: Section headings have been included in this Agreement merely for convenience of reference. They are not to be considered part of, or to be used in interpreting this Agreement.
14.10 Binding Effect: The covenants and conditions contained herein will apply to and bind the successors, representatives, and permitted assigns of the Parties.
14.11 Expenses: Each Party shall be responsible for its own legal, accounting and other transaction costs relating to the transactions contemplated in this Agreement.
14.12 Notices: All notices required to be given hereunder shall be in writing and given hereunder, as elected by the Party giving notice, as follows: (a) by personal delivery, (b) sent by overnight courier with confirmation of receipt, or (c) dispatched by certified or registered mail, return receipt requested, postage prepaid, addressed to the Parties as follows.
If to Evolent: Evolent, Inc.
800 N. Glebe Road, Suite 500
Arlington, VA 22203
Attention: President
Morgan Lewis & Bockius, LLP
225 Franklin Street
Boston, MA 02110
Attention: Mark B. Stein, Esq.
Fax No.: (617) 341-7701
If to ABCO: The Advisory Board Company
2445 M St. NW
Washington, DC 20037
Attention: General Counsel
Notice shall be deemed given (a) on the date of receipt if delivered personally; (b) on the business day following delivery of such notice to the overnight courier; or (c) three (3) business days after deposit in the mail in accordance with the foregoing. Either Party may change the address to which to send notices by notifying the other Party of such change of address in writing in accordance with the foregoing.
14.13 Press Releases: No press releases or other public announcements concerning the transactions contemplated by this Agreement shall be made by ABCO or Evolent without the prior written consent of both Parties; provided, however, that nothing herein shall prevent a Party from supplying such information or making statements as required by governmental authority or in order for a Party to satisfy its legal obligations (prompt notice of which shall in any such case be given to the other Party).
14.14 Severability: Any terms or provisions of this Agreement that shall prove to be invalid, void or illegal shall in no way affect, impair, or invalidate any other term or provision herein and such remaining terms and provisions shall remain in full force and effect provided that its general purposes are still reasonably capable of being effected. All such terms or provisions which are determined by a court of competent jurisdiction or other dispute resolution proceeding to be invalid, void or illegal shall be construed and limited so as to allow the maximum effect permissible by Law.
14.15 Waiver: The waiver by either Party to this Agreement of any one or more defaults, if any, on the part of the other, shall not be construed to operate as a waiver of any other or future defaults under the same or different terms, conditions or covenants contained in this Agreement.
IN WITNESS WHEREOF, the Parties have executed this Agreement effective as of the date first written above.
THE ADVISORY BOARD COMPANY EVOLENT HEALTH, INC.
/s/ Evan Farber
By: Evan Farber By:
Its: General Counsel Its:
[Signature Page to Amended and Restated Services, Reseller and Non-Competition Agreement]
IN WITNESS WHEREOF, the Parties have executed this Agreement effective as of the date first written above.
THE ADVISORY BOARD COMPANY EVOLENT HEALTH, INC.
/s/ Frank Williams
By: By: Frank Williams
Its: Its: CEO
| Not mentioned |
622_nda-10 | 622_nda-10_0 | Q: Receiving Party shall not disclose the fact that Agreement was agreed or negotiated.
Text: Exhibit 10.16
AMENDED AND RESTATED
SERVICES, RESELLER AND NON-COMPETITION AGREEMENT
THIS AMENDED AND RESTATED SERVICES, RESELLER AND NON-COMPETITION AGREEMENT (this “Agreement”) is made and entered into effective as of June 27, 2013 (the “Effective Date”) by and between The Advisory Board Company, a Delaware corporation (“ABCO”), and Evolent Health, Inc. (f/k/a VPHealth, Inc.), a Delaware corporation (“Evolent”), (each, a “Party”, and collectively, the “Parties”).
RECITALS
WHEREAS, ABCO and Evolent entered into a Services, Reseller and Non-Competition Agreement (the “Original Agreement”), effective as of August 31, 2011 (the “Original Effective Date”);
WHEREAS, since entering into the Original Agreement, Evolent and ABCO have continued to explore ways to improve the efficiency and implementation of their relationship; and
WHEREAS, as a result of the foregoing efforts, the Parties have agreed to amend and restate the Original Agreement as set forth in this Agreement.
NOW, THEREFORE, in consideration of the above recitals, the terms and conditions hereinafter set forth, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto agree as follows:
1. DEFINITIONS. For purposes of this Agreement:
1.1 “ABCO Restricted Products and Services” means (a) care management services including, but not limited to, traditional disease management services, direct patient outreach and other service-based care management offerings (e.g., readmissions management teams, nurse call centers, on-site care management teams); (b) care management workflow software designed for and used by provider-owned payor organizations or other entities intending to conduct active care management campaigns targeted at managing population health/longitudinal outcomes (i.e, solutions that are the same as or substantially similar to (i.e. functionality that is redundant in substantial and material respects with) HealthPlaNet); (c) services primarily intended to support cost reduction and benefit changes for health system employees; (d) consulting services comparable and competitive with blueprint consulting services offered by Evolent as of the Effective Date (“Blueprint Services”), (e) Exclusive TPA Services or (f) Crimson Care Registry products. For the avoidance of doubt, Restricted Products and Services does not include behavioral health-related services or software (e.g., Askesis Development Group software), services similar to those offered by UPMC WorkPartners (e.g., “Take-a-Healthy-Step” or similar health and wellness programs, occupational medicine, on-site clinic implementation and administration, employee assistance services, absence management or workers’ compensation services), or software or solutions similar to those offered by EBenefits Solutions, LLC.
1.2 “Active Sales Process”, with respect to any Person as of any date on which Evolent proposes to add such Person to the list of Evolent Top Prospects, means such Person (a) is not an Evolent Client as of such date and (b) either (i) has purchased ABCO Restricted Products and Services from ABCO prior to such date or (b) was engaged in active discussions with ABCO about acquiring ABCO Restricted Products and Services (including, but not limited to, a review of the applicable offering of ABCO Restricted Products and Services) as of such date.
1.3 “Affiliate” means any Person which Controls, is Controlled by, or is in common Control with, another Person.
1.4 “Business Plan” has the meaning set forth in that certain Intellectual Property License and Data Access Agreement between the Parties.
1.5 “Change of Control” with respect to any entity means a transaction or series of related transactions in which a Person, or a group of related Persons, acquires from stockholders of the subject entity, the entity’s shares representing more than fifty percent (50%) of the outstanding voting power of such entity.
1.6 “Confidential Information” means any and all technical and non-technical information, whether conveyed verbally, in writing, electronically or by any other means, including, but not limited to, trade secrets, source code, technology, know-how and proprietary information, techniques, plans or any other information relating to any research project, analysis, work in process, future development, scientific, engineering, marketing or business plans or financial, contractual or personnel matters relating to either Party or its present or future products, services, sales, suppliers, identity of and information relating to customers and prospective customers, customer or prospect list, prospective employees, investors or affiliates or other proprietary information disclosed or otherwise supplied in confidence by either Party to the other, to the extent that such information is provided pursuant to this Agreement by one Party to the other Party and is marked “confidential” or “proprietary” or that should be reasonably understood by the Receiving Party (based on the nature of the information or the context in which the information is disclosed) should be considered confidential. Confidential Information will not include information to the extent that: (a) such information is or becomes publicly available other than through any act or omission of either Party in breach of this Agreement; (b) such information was received by the Receiving Party, other than under an obligation of confidentiality, from a third party who had no obligation of confidentiality to the other Party; (c) such information was in the possession of the Receiving Party at the time of the disclosure or was independently developed by the Receiving Party, as reflected by the Receiving Party’s internal, written and dated documentation; or (d) an applicable regulation, court order or other legal process requires the disclosure of such information, provided that prior to such disclosure the Disclosing Party will give notice to the other Party so that the other Party may take reasonable steps to oppose or limit such disclosure, so that the Disclosing Party does not disclose any more information than necessary to comply with such legal process. The burden of proof that Confidential Information falls into any one of the above exemptions will be borne by the Party claiming such exemption with documentation or other credible evidence.
1.7 “Control” as used with respect to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities, by agreement or otherwise.
1.8 “Evolent Clients” means entities under a current contract with Evolent for an implementation and/or long-term services contract. 1.9 “Evolent Top Prospects” means, as of any date, up to twenty (20) potential Evolent customers in the Evolent sales pipeline identified by Evolent that are not Evolent Clients as of such date, and (a) are engaged in active discussions with Evolent regarding purchasing Evolent products and services and/or (b) are under a current contract with Evolent for Blueprint Services or other services that do not constitute implementation or long-term services; provided, however, that (i) the list of such potential Evolent customers may be updated by Evolent on a quarterly basis, and ABCO shall have the opportunity upon receipt of each such quarterly update to notify Evolent if any of the Persons added to such list are in an Active Sales Process with ABCO and shall therefore be removed from such list, and (ii) no Person shall remain on the list of Evolent Top Prospects for more than (x) twelve (12) consecutive months, in the case of potential Evolent customers without a signed agreement with Evolent, or (y) twenty-four (24) consecutive months, in the case of potential Evolent Clients that signed an agreement for Blueprint Services with Evolent before or within twelve (12) months of being added to the list of Evolent Top Prospects.
1.10 “Exclusive TPA Services” means certain services as set forth on Schedule 1 of the UPMC Reseller Agreement (as in effect on the Effective Date), to the extent that UPMC Health Plan, Inc., a Pennsylvania nonprofit corporation (“UPMC”), has the exclusive right to provide such services to Evolent, for resale by Evolent to its customers.
1.11 “Disclosing Party” means a Party that provides Confidential Information to the other Party, or the other Party’s Affiliates.
1.12 “Governmental Authority” means any federal, state, municipal, local, territorial, or other governmental department, regulatory authority, judicial or administrative body, whether domestic, foreign or international.
1.13 “Law” means all international, federal, country, state, provincial, local and other laws, rules and regulations, declaration, decree, directive, legislative enactment, order, code, ordinance, regulation, rule or other binding restriction of or by any Governmental Authority, as the same are promulgated, supplemented or amended from time to time.
1.14 “Loss” individually, and collectively, “Losses” means all claims, liabilities, obligations, losses, costs, expenses (including, without limitation, legal, accounting and similar expenses), litigation, proceedings, fines, taxes, levies, imposts, duties, deficiencies, assessments, charges, penalties, allegations, demands, damages (including, but not limited to, actual, punitive or consequential, foreseen or unforeseen, known or unknown, fixed or contingent, and matured or unmatured), civil and criminal violations of Law, settlements and judgments of any kind or nature whatsoever.
1.15 “Person” means any individual, corporation, partnership, firm, joint venture, association, limited liability company, limited liability partnership, joint-stock company, trust, joint venture, unincorporated organization, governmental, judicial or regulatory body, business unit, division or any other business entity, organization or Governmental Authority.
1.16 “Receiving Party” means a Party that receives Confidential Information from the other Party or the other Party’s Affiliates.
1.17 “Statement of Work” or “SOW” means an agreement by and between ABCO and Evolent that contains the detailed description of services, scope, specifications, pricing, implementation plan, timetables, milestones, and other terms and conditions for each procurement of services, as applicable.
1.18 “UPMC Reseller Agreement” means that certain Second Amended and Restated Reseller, Services and Non-Competition Agreement between UPMC and Evolent dated as of [the Effective Date].
2. SERVICES TO BE PROVIDED BY ABCO.
2.1 General Services:
2.1.1 Minimum Purchase. The Parties hereby acknowledge and agree that Evolent has purchased from ABCO a minimum of Two Hundred Thousand Dollars ($200,000) of services (as described in Section 2.2.1) (the “Original Minimum Purchase”) for delivery between the Original Effective Date and the first anniversary thereof.
2.1.2 Statements of Work. The specific description, price, service levels (if applicable) and other project, service, and/or customer-specific terms for a particular service that may be provided by ABCO to Evolent (each, a “Service”, and collectively, the “Services”) shall be set forth in a Statement of Work that will be created on a project by project basis.
2.2 Right of First Offer and Process for Invoking:
2.2.1 Applicable Services. Throughout the Term, ABCO shall have the right of first offer to provide the following services to Evolent and Evolent’s customers:
(a) Physician practice management consulting and other physician practice management services;
(b) Physician incentive design services;
(c) Medical home development consulting services; and
(d) Performance analytics shared with physicians with the intent to improve outcomes.
2.2.2 Process for Exercising Right of First Offer. Evolent shall notify ABCO in writing in the event Evolent desires to receive any of the above services (“First Offer Services”). ABCO shall have a period of thirty (30) days (“First Offer Services Evaluation Period”) within which to conduct its evaluation and diligence with respect to providing such First Offer Services. Evolent shall cooperate with ABCO and provide reasonable assistance and information to ABCO to enable ABCO to conduct its evaluation. Within five (5) business days after the expiration of such First Offer Services Evaluation Period, ABCO shall notify Evolent in writing whether or not it wishes to provide such services to Evolent. If ABCO elects to provide such First Offer Services, Evolent agrees to engage in good faith negotiations with ABCO, on an exclusive basis for a period of sixty (60) days, regarding the specific terms covering such First Offer Services.
2.3 Failure to Execute a Service Agreement for the VBC Innovation Center: The Parties acknowledge and agree that it was their intent as of the Original Effective Date to enter into a service agreement under which Evolent would engage ABCO to provide certain consulting, development and support services in connection with the creation, launch, implementation and ongoing support of a Value-Based Care Innovation Center (the “VBC Innovation Center”), in consideration for which Evolent would pay ABCO a fixed fee of Eight Hundred Thousand Dollars ($800,000) per year (“Fixed Fee”) for each of the first two (2) years of the term of such VBC Innovation Center service agreement. The Parties acknowledge and agree that, notwithstanding the fact that they negotiated with diligence and in good faith the specific terms and conditions of such service agreement, the Parties were unable to reach an agreement with respect to the VBC Innovation Center. Accordingly, the Original Minimum Purchase is increased to One Million Two Hundred Thousand Dollars ($1,200,000) (the “Minimum Purchase”) as follows: (a) between the Original Effective Date and the second anniversary thereof, Evolent shall have purchased from ABCO a minimum of Seven Hundred Thousand Dollars ($700,000) of services for delivery on or prior to such second anniversary of the Original Effective Date), and (b) inclusive of the purchases described in clause (a), between the Original Effective Date and the third anniversary thereof, Evolent shall have purchased from ABCO a minimum of One Million Two Hundred Thousand Dollars ($1,200,000) of services for delivery on or prior to such third anniversary of the Original Effective Date); provided that, for purposes of this sentence, “services” shall include consulting, software, professional or analytic services provided from time to time by ABCO to Evolent (other than services in connection with the provision of any office space by or on behalf of ABCO to Evolent) or, pursuant to a joint written proposal by ABCO and Evolent, to any Evolent Client.
2.4 Reservation of Rights: For the avoidance of doubt, Evolent is not precluded from offering and providing services directly to its customers, subject (a) to (i.e., after ABCO has had the full opportunity to exercise) ABCO’s right of first offer to provide any First Offer Services in accordance with Section 2.2) and (b) to Evolent’s compliance with its non-competition obligations as set forth in Section 6.2.
2.5 Designation of Relationship Managers: In order to support the launch and ongoing success of the exclusive reseller relationship between ABCO and Evolent, each Party agrees to designate a senior level individual who will serve as the primary liaison and “go to” contact and relationship manager for such Party (each, a “Relationship Manager”). Each Party’s Relationship Manager’s role and responsibilities would include: (a) facilitating day-to-day communications between the Parties regarding customer-facing activities, such as marketing, promotional and sales activities and preparing and submitting bids, proposals, responses to requests for proposals, fee estimates, Statements of Work and project plans; (b) receiving and submitting requests between the Parties for information and/or assistance; (c) overseeing the efficient knowledge transfer and flow of information between the Parties; (d) facilitating communications between the appropriate individuals within Evolent and ABCO, with respect to product and service offering development; and (e) providing the first level of performance review or escalation in the event of a Dispute as provided in Section 13. The Relationship Managers will meet regularly, but no less frequently than monthly, as reasonably necessary, to maintain a good working relationship between the Parties. Each Party may change its Relationship Manager by giving the other Party reasonable notice as long as the change is implemented in a manner that does not cause any significant disruption to each Party’s business operations and business relationship.
3. FEES; PAYMENT TERMS; SHORTFALL.
3.1 Fees; Timing of Payments: Evolent shall pay ABCO the applicable fees for the Services performed by ABCO pursuant to a Statement of Work, as follows: (a) unless the Parties otherwise agree in writing, a deposit of 50% of the total fees for the particular project shall be paid upon signing of the Statement of Work; (b) ABCO will submit an invoice to Evolent for the balance upon completion of the work; and (c) Evolent shall pay ABCO for such invoiced amount within thirty (30) days after receipt of such invoice.
3.2 Minimum Purchase and Shortfall: Evolent agrees to pay ABCO the Minimum Purchase. If the aggregate amount of Services actually procured by Evolent from ABCO is not equal to or greater than (a) Seven Hundred Thousand Dollars ($700,000) of services for delivery on or prior to the second anniversary of the Original Effective Date or (b) inclusive of the purchase described in clause (a), the Minimum Purchase of services for delivery on or prior to the third anniversary of the Original Effective Date, Evolent shall pay ABCO the amount of the shortfall (i.e., the difference between Seven Hundred Thousand Dollars ($700,000) or the Minimum Purchase amount, as applicable, less the sum of: (a) the aggregate fees for the actual amount of Services procured; and (b) any Credits (as provided in the next sentence) (the “Shortfall”), if any, on or before August 31, 2013 or August 31, 2014, as applicable. In the event that ABCO refuses or fails, without reasonable cause, to provide any of the Services requested by Evolent (provided the scope of the Services requested is within the scope customarily provided by ABCO), the fees that would otherwise have been applicable had ABCO agreed to provide such Services would count as a “Credit”. As of the date hereof, no such Credits have accrued.
4. TERM AND RENEWAL. The initial term of this Agreement shall commence on the Effective Date and unless sooner terminated in accordance with the terms hereof, shall continue until August 31, 2016 (“Initial Term”). Thereafter, this Agreement shall automatically be renewed for another five-year term (“Renewal Term”) unless either Party elects to terminate this Agreement by providing the other Party with written notice of termination one hundred eighty (180) days prior to the expiration of the current term. (“Initial Term” and “Renewal Term” collectively, the “Term”).
5. REFERRAL FEES, SOLICITATION AND COMPETITION AND POST-CLOSING SERVICES.
5.1 Referral Fees:
5.1.1 During the Term, ABCO will pay Evolent a sales referral fee for any sale made by ABCO that resulted from a “net” new sale from a new customer that was not already in ABCO’s sales pipeline (i.e., a “warm lead”) or a then-current customer of ABCO generated directly by Evolent’s efforts and without any assistance from any ABCO employee or representative (including any Evolent employee that serves on the Board of Directors of ABCO), equal to 5% of the total ABCO revenue from the new customer during the initial twelve (12) months of services under the services agreement with such new customer.
5.1.2 During the Term, Evolent will pay ABCO a sales referral fee for any sale made by Evolent that resulted from a “net” new sale from a new customer that was not already in Evolent’s sales pipeline (i.e., a “warm lead”) or a then-current customer of Evolent generated directly by ABCO’s efforts and without any assistance from any Evolent employee or representative (including any ABCO employee that serves on the Board of Directors of Evolent), in accordance with the following terms:
(a) ABCO will receive a one-time referral fee for any “employee health” diagnostic, consulting or broker services provided by Evolent to a Covered Health System, equal to the lesser of $20,000 or 5% of the total Evolent revenue from the Covered Health System during the initial twelve (12) months of services under the service agreement with such Covered Health System.
(b) ABCO will receive $50,000 per year for three (3) years for each health system joining Evolent as an Employee Health Platform Customer. An “Employee Health Platform Customer” is defined as a health system purchasing diagnostic/consulting services and ongoing medical management/health plan services (i.e., care management, HealthPlaNet care management application, and the TPA platform, etc.).
(c) ABCO will receive $100,000 per year for three (3) years for a health system joining Evolent as a Platform Health Plan Customer. A “Platform Health Plan Customer” is defined as a health system purchasing ongoing medical management services, ongoing health plan outsourcing services (i.e., TPA) and health plan management services for purposes of a licensed insurance entity with at least fifty thousand (50,000) lives (beyond the employee population).
(d) With the exception of making the introduction (either through an email or an in-person meeting) (to generate the “warm lead”), ABCO would not be expected to perform any actual duties or incur actual cost to receive a referral fee.
(e) The annual referral fees for each referral would be capped at the lesser of (x) 5% of annual revenue generated by Evolent for the respective customer and (y) the $50,000 or $100,000 figures described above, as applicable.
6. SOLICITATION AND COMPETITION.
6.1 Scope:
6.1.1 Throughout the Term, ABCO agrees not to offer any ABCO Restricted Products and Services to (a) any Evolent Clients or (b) any Evolent Top Prospects; provided, however, that ABCO shall not be restricted from making any such offer to any Evolent Top Prospect or Evolent Client with whom ABCO was, at the time such Person was identified as an Evolent Top Prospect or became an Evolent Client, engaged in an Active Sales Process. The foregoing restrictions shall not apply in the event of a Change of Control of Evolent or in the event that ABCO ceases to be a shareholder of Evolent.
6.1.2 None of the foregoing would prohibit ABCO from:
(a) Marketing, offering, licensing or selling versions of any of its Crimson Population Risk Management products, or the successors to any such products, provided that such products, or the successors to any such products, are not the same as or substantially similar to (i.e., includes functionality that is redundant in substantial and material respects with) HealthPlaNet as it exists as of the Effective Date.
(b) Supporting employers with care management related best practices and research.
(c) Offering traditional “dedicated advisor” support in conjunction with ABCO’s traditional business intelligence offerings.
(d) Marketing, offering, licensing or selling its employer health product.
(e) Providing physician management consulting and other physician management services.
6.2 Restrictions Relating to Certain ABCO Products and Services: Evolent shall not, until the earlier of (x) ABCO’s ceasing to be a shareholder of Evolent or (y) the seventh (7 ) anniversary of the date of this Agreement, promote, market, provide, offer or sellth (a) unbundled software applications, software tools or other similar technologies (including, without limitation, software as a service, analytics technology or data services) (each, a “Technology Solution”), (b) consulting services that are not intended to lead to or be a part of a Blueprint Services engagement, implementation contract and/or long-term services contract, or (c) any best practices membership programs or unbundled or bundled physician practice management and other physician practice management consulting services, in each case referred to in this clause (c) that are substantially similar to, or that are competitive with, ABCO’s best practices membership programs or physician practice management or other physician practice management consulting services that are offered by ABCO as of the date first written above. For the avoidance of doubt, “unbundled” means on a stand-alone basis, instead of “bundled”, which contemplates that the Technology Solution is both (i) offered as part of a “packaged”, integrated offering, in conjunction with other Evolent products or services that are not Technology Solutions (and not only services that constitute customary software, data and end user support-related services), such as the Exclusive TPA Services, and (ii) incidental to the provision of such other Evolent products or services. Notwithstanding any other provision hereof, the foregoing restrictions in this Section 6.2 shall survive a Change of Control of Evolent for seven (7) years from the date of this Agreement; provided, however, that prior to the seventh (7 ) anniversary of the date of thisth Agreement, the acquiring party in a Change of Control of Evolent shall be not be subject to the foregoing restrictions with respect to any Technology Solutions or consulting services, in each case, that are unrelated to the Evolent assets acquired.
6.3 Non-Solicitation or Hiring: During the Term and for a period of eighteen (18) months thereafter, Evolent shall not solicit or hire any of ABCO’s employees without ABCO’s prior written consent.
7. EXCLUSIVE RESELLER RIGHTS FOR FUTURE PRODUCTS.
In the event that Evolent creates a discrete or segregable product or service that can be sold to healthcare providers, Evolent shall notify ABCO in writing of such new offerings (“New Products”). ABCO shall have a period of ninety (90) days (“New Products Evaluation Period”) within which to conduct its evaluation and diligence with respect to providing such New Products. Evolent shall cooperate with ABCO and provide reasonable assistance and information to ABCO to enable ABCO to conduct its evaluation. Within five (5) business days after the expiration of such New Products Evaluation Period, ABCO shall notify Evolent in writing whether or not it wishes to have the right to resell such New Products. If ABCO elects to resell such New Products, Evolent and ABCO agree to negotiate in good faith on an exclusive basis for one hundred twenty (120) days the terms of a reseller agreement, under which ABCO would be the exclusive distributor (in addition to Evolent) of such New Products.
8. CONFIDENTIALITY.
8.1 Confidential Information: ABCO acknowledges that in connection with its rights and obligations under this Agreement it may gain access to the Confidential Information of Evolent and its customers and Affiliates. Evolent acknowledges that in connection with its rights and obligations under this Agreement, it may gain access to the Confidential Information of ABCO and its customers and Affiliates.
8.2 Non-Disclosure: The Receiving Party may disclose the Disclosing Party’s Confidential Information strictly on a need-to-know basis to only those personnel, including employees of the Receiving Party’s contractors, who require access to the Disclosing Party’s Confidential Information in order to perform or derive benefit from the Services or otherwise meet its obligations under this Agreement. The Receiving Party agrees: (a) to hold the Disclosing Party’s Confidential Information in strict confidence, using the same degree (but no less than a reasonable degree) of care and protection that it exercises with its own Confidential Information of a similar nature; (b) not to directly or indirectly disclose or otherwise make available any Confidential Information of the Disclosing Party to a third party; and (c) not to copy or use the Disclosing Party’s Confidential Information for any purpose other than as necessary to fulfill the Receiving Party’s obligations or exercise its rights under this Agreement. Each Receiving Party is responsible for ensuring that its employees, agents and contractors strictly abide by the requirements of confidentiality and restrictions on use as provided in this Section 8.2 and shall be liable to the Disclosing Party for any acts or omissions of its employees, agents and independent contractors relating to the Disclosing Party’s Confidential Information. The Receiving Party is allowed to disclose Confidential Information of the Disclosing Party to the extent required by Law or by the order or a court of similar judicial or administrative body with jurisdiction, provided that the Receiving Party notifies the Disclosing Party of such required disclosure promptly and in writing and cooperates with the Disclosing Party, at the Disclosing Party’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure. The provisions of this Section 8 shall survive beyond the expiration or termination of this Agreement.
8.3 Injunctive Relief: The Parties acknowledge and agree that monetary damages may be inadequate to compensate for a breach of the provisions contained in this Section 8 or other confidentiality provisions of this Agreement. In the event of such breach, the injured Party shall be entitled to seek injunctive relief (without the need to post bond) and any and all other remedies available at Law or in equity. This Section 8.3 in no way limits the liability or damages that may be assessed against a Party in the event of a breach by the other Party of any of the provisions of this Section 8.
8.4 Residuals: Notwithstanding anything in this Section 8 to the contrary, subject to any applicable statutory intellectual property rights applicable to patents, trademarks or copyrights, either Party may use “Residuals” for any purpose, including without limitation, for use in development, manufacture, promotion, sale and maintenance of its products and services; provided, however, that this right to Residuals does not represent a license under any patents, copyrights or trademarks of the Disclosing Party. The term “Residuals” means any information that is retained in the unaided memories of the Receiving Party’s employees who have had access to the Disclosing Party’s Confidential Information pursuant to the terms of this Agreement.
9. WARRANTIES.
9.1 Authority/No Conflict: ABCO represents and warrants that (a) it has the power and authority to enter into and perform its obligations under this Agreement without conflict with, default under, or violation of any Law, regulation, or agreement binding upon it, and (b) this Agreement has been duly authorized by all necessary organizational action, and duly and validly executed and delivered by it, and constitutes its legally valid and binding obligation, enforceable in accordance with its terms.
9.2 Services: ABCO represents, warrants and covenants that the Services provided under this Agreement will be performed in a professional and workmanlike manner.
9.3 Compliance with Laws/Approvals: Each of ABCO and Evolent shall comply in all material respects with all Laws and regulations applicable to ABCO or Evolent, as applicable, in performing its obligations under this Agreement. To the extent applicable, ABCO shall be responsible for obtaining all necessary permits, licenses, and consents, including governmental approvals, required of ABCO and its contractors in connection with the performance of its obligations under this Agreement, and Evolent shall be responsible for obtaining all necessary permits, licenses, and consents, including governmental approvals, required of Evolent and its contractors in connection with the performance of its obligations under this Agreement.
9.4 Limitations of Warranty: EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, ABCO MAKES NO OTHER WARRANTY OR REPRESENTATION, ORAL, WRITTEN, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE SERVICES, INCLUDING WITHOUT LIMITATION, THEIR QUALITY, PERFORMANCE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, UNINTERRUPTED OR ERROR-FREE OPERATION OR OTHERWISE HEREUNDER. The disclaimer of warranties and limitations set forth in this Agreement constitute an essential part of this Agreement.
10. INDEMNIFICATION.
10.1 IP Indemnification: ABCO shall defend, indemnify and hold harmless Evolent and its Affiliates (other than ABCO), customers, and their respective officers, directors and employees from and against any Losses resulting from a claim that the Services provided by ABCO under this Agreement infringes or misappropriates a third party’s intellectual property rights. ABCO shall also use commercially reasonable efforts to modify the allegedly infringing Services to make it non-infringing, procure a license from the third party claiming infringement to permit Evolent to continue to use the Services, or provide Evolent with functionally equivalent and non-infringing Services. THIS SECTION 10.1 SETS FORTH ABCO’S SOLE AND EXCLUSIVE LIABILITY, AND EVOLENT’S SOLE AND EXCLUSIVE REMEDY, FOR ALLEGATIONS OR CLAIMS OF INFRINGEMENT OF THIRD PARTY RIGHTS OF ANY KIND ASSERTED AGAINST EVOLENT, ITS AFFILIATES (OTHER THAN ABCO), CUSTOMERS AND THEIR RESPECTIVE OFFICERS, DIRECTORS AND EMPLOYEES. ABCO shall not be obligated to indemnify Evolent, its Affiliates, customers, and their respective officers, directors and employees for infringement or misappropriation claims to the extent such claims arise out of use by Evolent or its customers of any of the Services in a manner other than as contemplated by the Parties under this Agreement.
10.2 ABCO’s Indemnification: ABCO hereby agrees to indemnify, defend, and hold Evolent and its Affiliates (other than ABCO), and all of their respective directors, officers, members, managers, partners, employees, agents, successors and assigns, harmless from and against any Losses arising from or related to: (a) the material breach of this Agreement, including any or all SOWs, by ABCO or its personnel (including contractors); (b) breach of any of ABCO’s representations, warranties, and covenants in this Agreement; or (c) negligence or willful misconduct by ABCO or its personnel (including contractors).
10.3 Evolent’s Indemnification: Evolent hereby agrees to indemnify, defend, and hold ABCO and its Affiliates (other than Evolent), and all of their respective directors, officers, members, managers, partners, employees, agents, successors and assigns, harmless from and against any Losses arising from or related to: (a) the material breach of this Agreement, including any or all SOWS, by Evolent or its personnel (including contractors); (b) breach of any of Evolent’s representations, warranties and covenants in this Agreement; or (c) negligence or willful misconduct by Evolent or its personnel (including contractors).
10.4 Indemnification Procedure:
10.4.1 Notice of Claim. Any Party seeking indemnification hereunder (the “Indemnitee”) shall notify the Party liable for such indemnification (the “Indemnitor”) in writing of any event, omission or occurrence that the Indemnitee has determined has given or could give rise to Losses that are indemnifiable hereunder (such written notice being hereinafter referred to as a “Notice of Claims”). Such Notice of Claims shall be given promptly after the Indemnitee becomes aware of its own claim or that of a third party; provided that the failure of any Indemnitee to give notice as provided in this Section 10.4.1 shall not relieve the Indemnitor of its obligations under this Section 10. A Notice of Claims shall specify in reasonable detail the nature and any particulars of the event, omission, or occurrence giving rise to a right of indemnification. The Indemnitor shall satisfy its obligations hereunder, as the case may be, within thirty (30) days of its receipt of a Notice of Claims.
10.4.2 Process. With respect to any third party claim, demand, suit, action, or proceeding that is the subject of a Notice of Claim, the Indemnitor shall, in good faith and at its own expense, defend, contest, or otherwise protect against any such claim, demand, suit, action, or proceeding with legal counsel of its own selection (and reasonably acceptable to the Indemnitee). The Indemnitee shall have the right, but not the obligation, to participate, at its own expense, in the defense thereof through counsel of its own choice and shall have the right, but not the obligation, to assert any and all cross claims or counterclaims it may have. So long as the Indemnitor is defending in good faith any such third party claim, demand, suit, action or proceeding, the Indemnitee shall at all times cooperate, at its own expense, in all reasonable ways with, make its relevant files and records available for inspection and copying by, and make its employees available or otherwise render reasonable assistance to, the Indemnitor. In the event that the Indemnitor fails to timely defend, contest or otherwise protect against any such third party claim, demand, suit, action, or proceeding, the Indemnitee shall have the right, but not the obligation, to defend, contest, assert cross claims or counterclaims, or otherwise protect against, the same and may make any compromise or settlement thereof and be entitled to all amounts paid as a result of such third party claim, demand, suit, or action or any compromise or settlement thereof. The Indemnitor will not consent to the entry of any judgment or enter into any settlement with respect to any such third party claim, demand, suit, action or proceeding without the prior written consent of the Indemnitee, which will not be unreasonably withheld, and provided that no settlement shall require the Indemnitee to admit liability, or perform or become subject to additional obligations thereunder.
11. LIMITS OF LIABILITY. EXCEPT WITH RESPECT TO OR BREACH BY EITHER PARTY OF THE OTHER PARTY’S CONFIDENTIAL INFORMATION UNDER SECTION 8,
NEITHER EVOLENT NOR ABCO SHALL BE LIABLE FOR, NOR WILL THE MEASURE OF DAMAGES INCLUDE, ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OR AMOUNTS INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF INCOME, PROFITS, OR SAVINGS, LOSS OF DATA, OR COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES, ARISING OUT OF OR RELATING TO ITS PERFORMANCE UNDER THIS AGREEMENT UNDER ANY CAUSE OF ACTION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL EITHER PARTY’S LIABILITY EXCEED THE AMOUNT OF REVENUE ACTUALLY RECEIVED BY ABCO IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO THE CLAIM.
12. TERMINATION.
12.1 Termination for Cause: Either Party shall have the right to terminate this Agreement in the event the other Party materially violates a material provision of this Agreement and such violation is not cured or cannot be cured within thirty (30) days after written notice of such material violation.
12.2 Survival: The rights and obligations contained in Sections 1, 5 (with respect to Evolent’s payment obligations that may extend beyond the Term), 6.2, 6.3, 8, 9.4, 10, 11, 12.2, 13 and 14 shall survive any termination or expiration of this Agreement.
13. ESCALATION; DISPUTE RESOLUTION. Subject to the terms of Section 13.5, the procedures of this Section 13 will control the resolution of any and all disputes between the Parties including, without limitation, any dispute relating to disputed monies owing or breach of warranty (each, a “Dispute”). The Parties will seek to resolve each Dispute as follows:
13.1 First Level Performance Review: Each Party’s Relationship Manager will meet as often as will reasonably be required by either Party to review the performance of either Party under this Agreement and to resolve the Dispute. If these representatives are unable to resolve the Dispute within ten (10) business days after the initial request for a meeting, then the Parties will submit the Dispute to an executive level performance review as provided in Section 13.2 below.
13.2 Executive Level Performance Review: Face-to-face negotiations will be conducted by a senior executive officer of each Party (or such other executive as a Party may designate). If these representatives are unable to resolve the Dispute within five (5) business days after the Parties have commenced negotiations or ten (10) business days have passed since the initial request for a meeting at this level, then the Parties may jointly engage the services of a third-party mediator.
13.3 Arbitration: If the Parties are unable to resolve the Dispute through the alternative mechanisms described above, the Parties shall submit the Dispute for resolution through binding arbitration, except as otherwise provided in Section 13.5. The Parties agree and consent to such arbitration proceeding taking place in Wilmington, Delaware, and in accordance with the Commercial Arbitration Rules of the American Arbitration Association, except that discovery may be had in accordance with the Federal Rules of Civil Procedure. The Parties shall be permitted at least six (6) months from the date of the filing of the Arbitration Demand to conduct discovery. The arbitration proceedings shall be conducted by a panel of three (3) impartial arbitrators, with each Party selecting one (1) of the impartial arbitrators and those two (2) arbitrators then selecting the third impartial arbitrator, all such selections to be made through the procedures of the American Arbitration Association. At least one (1) arbitrator must be an attorney licensed under the Laws of Pennsylvania and at least one (1) arbitrator (may be the same Person as the Pennsylvania attorney) must have direct and substantial experience in the industry pertinent to the subject matter of the Dispute. Judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof; provided, however, in rendering its decision, the arbitrators shall be bound by the Laws of the Commonwealth of Pennsylvania (without regard to its conflicts of laws provisions) and by the terms and conditions of this Agreement setting forth the rights and responsibilities of the Parties. The decision of the arbitration panel shall be accompanied by a written opinion setting forth the factual and legal bases for the award. The arbitrators shall issue such written decision within thirty (30) days of the conclusion of the arbitration hearing. The arbitrators appointed hereunder shall not have the power to award punitive damages. Service of a petition to confirm the arbitration award may be made by United States mail, postage prepaid, or by any regularly conducted commercial express mail service, to the attorney for the Party or, if not so represented, to the Party at the address set forth herein, or to the Party’s last known business address. The prevailing Party in any action related to or arising under this Agreement shall be entitled to reasonable attorneys’ fees and costs.
13.3.1 For any Dispute in which the amount in controversy is at least One Million Dollars ($1,000,000), the following additional procedures apply:
(a) a certified court reporter shall transcribe the arbitration hearings; The Parties initially split the cost of the reporter, but such costs shall ultimately be awarded to the Party prevailing in the arbitration proceeding; and
(b) either Party may take an appeal from the final decision by making a written demand within twenty (20) days of the award.
13.3.2 Any such appeal shall be conducted as follows:
(a) such appeals are limited to issues of Law (i.e., the original award (1) contains material errors of Law such that the original award is not founded on any appropriate legal basis; (2) is based on factual findings clearly unsupported by the record; or (3) is subject to one or more grounds set forth in Section 10 of the Federal Arbitration Act or 42 Pa. C.S.A. §7341 for vacating an award);
(b) the Person hearing the appeal shall be a former federal judge mutually agreed to by the Parties or selected through the procedures of the American Arbitration Association. The former judge shall act as the appellate arbitrator;
(c) the submissions on appeal are limited to (1) the record of the arbitration, (2) a 30-page brief by the appellant, (3) a 30-page brief by the appellee and (4) a 10-page response by the appellant. The appellate arbitrator will set the dates for submission of the briefs. Oral argument may be heard at the discretion of the appellate arbitrator;
(d) the appellate arbitrator shall render a written decision within sixty (60) days of the final submission;
(e) during the pendency of the arbitration appeal, the Parties agree to suspend any running of the time to seek enforcement of the original award. The Parties also agree to waive any appeal to state or federal courts based on the grounds set forth in Section 10 of the Federal Arbitration Act for vacating an award and 42 Pa. C.S.A. § 7341;
(f) the appellate arbitrator must award costs and attorneys’ fees to the prevailing Party; and
(g) the decision of the appellate arbitrator shall be final.
13.4 Continued Performance: Each Party acknowledges that the timely and complete performance of its obligations pursuant to this Agreement is critical to the business and operations of the other Party. Accordingly, in the event of a Dispute, each Party shall continue to so perform all of its obligations under this Agreement, in good faith during the resolution of such Dispute unless and until (a) authority to stop doing so is granted or conferred by a court of competent jurisdiction or (b) this Agreement is terminated in accordance with the provisions hereof.
13.5 Equitable Relief: Notwithstanding anything contained in this Agreement to the contrary, the Parties will be entitled to seek injunctive relief, specific performance or other equitable relief whenever the facts or circumstances would permit a Party to seek equitable relief in a court of competent jurisdiction. Without limiting the generality of the foregoing, (a) Evolent agrees that there would be irreparable harm to ABCO in the event of any such breach by Evolent of Section 6.2 and ABCO shall be entitled to (i) injunctive relief to prevent breaches of Section 6.2, (ii) specific performance of this Agreement, and (iii) any other remedies provided by Law or equity, including without limitation an award for damages, and (b) ABCO agrees that there would be irreparable harm to Evolent in the event of any such breach by ABCO of Section 6.1.1, and Evolent shall be entitled to (i) injunctive relief to prevent breaches of Section 6.1.1, (ii) specific performance of this Agreement, and (iii) any other remedies provided by Law or equity, including without limitation an award for damages.
14. MISCELLANEOUS PROVISIONS.
14.1 Good Faith and Mutual Agreement: Unless otherwise expressly stated in such provision, if a provision in this Agreement calls for the consent of a Party or the mutual agreement of the Parties, the Parties agree that each will act in good faith, will not unreasonably withhold their consent and that deference shall be given to the other Party’s reasonable business requirements, and the requirements of the Parties’ respective regulators and internal controls procedures.
14.2 Independent Contractor: The relationship of ABCO to Evolent shall at all times be that of an independent contractor. Nothing in this Agreement shall be construed to create any partnership, association, joint venture, or employment between the Parties. Each Party shall have the sole and exclusive control over the labor and employee relations policies and policies relating to wages, hours, working conditions, benefits, or other conditions of its personnel and shall be responsible and liable for the acts and omissions of its employees, agents and contractors.
14.3 Assignability: Evolent has entered into this Agreement because of the expertise of ABCO, and ABCO understands that the obligations of ABCO are personal to ABCO and may not be assigned to any other company, partnership or individual without the express written consent of Evolent; provided, however, that no consent shall be required if an assignment is made in connection with a sale of all or substantially all of ABCO’s assets or stock, or in connection with a merger or Change of Control. Evolent may assign this Agreement (including the licenses granted pursuant to this Agreement) to any Affiliate of Evolent as part of an internal reorganization or in connection with a sale of substantially all of its assets or stock, or in connection with a merger or Change of Control.
14.4 Governing Law and Jurisdiction: This Agreement shall be governed by and construed and enforced in accordance with the Laws of the Commonwealth of Pennsylvania, without regard to that state or any other state’s conflicts of law rules. Each Party irrevocably consents to the personal jurisdiction of the state and federal courts located in Wilmington, Delaware for any suit or action arising from or related to this Agreement.
14.5 Force Majeure: Neither Party shall be deemed in default of this Agreement to the extent that performance of their obligations or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, act of government, or any other cause beyond the control of such Party, provided that such Party gives the other Party written notice thereof promptly and, in any event, within fifteen (15) days of discovery thereof, and uses its commercially reasonable efforts to cure any such breach.
14.6 Entire Agreement: This Agreement and its exhibits, schedules, and attachments constitute the entire understanding between the Parties with respect to the subject matter hereof and supersede all prior written or oral representations with respect to the subject matter hereof. This Agreement may not be modified, amended, or otherwise changed in any manner except by a written instrument executed by the Party against whom enforcement is sought.
14.7 Cumulative Remedies: Except as expressly provided in this Agreement, (a) remedies for breach are cumulative and may be exercised separately or concurrently, (b) the exercise of one remedy is not an election of that remedy to the exclusion of others, and (c) the provision for any remedy in this Agreement shall not affect remedies otherwise available at Law or in equity.
14.8 No Third Party Beneficiaries: The Parties do not intend that this Agreement creates any right or cause of action in or on behalf of any Person other than Evolent and ABCO.
14.9 Headings: Section headings have been included in this Agreement merely for convenience of reference. They are not to be considered part of, or to be used in interpreting this Agreement.
14.10 Binding Effect: The covenants and conditions contained herein will apply to and bind the successors, representatives, and permitted assigns of the Parties.
14.11 Expenses: Each Party shall be responsible for its own legal, accounting and other transaction costs relating to the transactions contemplated in this Agreement.
14.12 Notices: All notices required to be given hereunder shall be in writing and given hereunder, as elected by the Party giving notice, as follows: (a) by personal delivery, (b) sent by overnight courier with confirmation of receipt, or (c) dispatched by certified or registered mail, return receipt requested, postage prepaid, addressed to the Parties as follows.
If to Evolent: Evolent, Inc.
800 N. Glebe Road, Suite 500
Arlington, VA 22203
Attention: President
Morgan Lewis & Bockius, LLP
225 Franklin Street
Boston, MA 02110
Attention: Mark B. Stein, Esq.
Fax No.: (617) 341-7701
If to ABCO: The Advisory Board Company
2445 M St. NW
Washington, DC 20037
Attention: General Counsel
Notice shall be deemed given (a) on the date of receipt if delivered personally; (b) on the business day following delivery of such notice to the overnight courier; or (c) three (3) business days after deposit in the mail in accordance with the foregoing. Either Party may change the address to which to send notices by notifying the other Party of such change of address in writing in accordance with the foregoing.
14.13 Press Releases: No press releases or other public announcements concerning the transactions contemplated by this Agreement shall be made by ABCO or Evolent without the prior written consent of both Parties; provided, however, that nothing herein shall prevent a Party from supplying such information or making statements as required by governmental authority or in order for a Party to satisfy its legal obligations (prompt notice of which shall in any such case be given to the other Party).
14.14 Severability: Any terms or provisions of this Agreement that shall prove to be invalid, void or illegal shall in no way affect, impair, or invalidate any other term or provision herein and such remaining terms and provisions shall remain in full force and effect provided that its general purposes are still reasonably capable of being effected. All such terms or provisions which are determined by a court of competent jurisdiction or other dispute resolution proceeding to be invalid, void or illegal shall be construed and limited so as to allow the maximum effect permissible by Law.
14.15 Waiver: The waiver by either Party to this Agreement of any one or more defaults, if any, on the part of the other, shall not be construed to operate as a waiver of any other or future defaults under the same or different terms, conditions or covenants contained in this Agreement.
IN WITNESS WHEREOF, the Parties have executed this Agreement effective as of the date first written above.
THE ADVISORY BOARD COMPANY EVOLENT HEALTH, INC.
/s/ Evan Farber
By: Evan Farber By:
Its: General Counsel Its:
[Signature Page to Amended and Restated Services, Reseller and Non-Competition Agreement]
IN WITNESS WHEREOF, the Parties have executed this Agreement effective as of the date first written above.
THE ADVISORY BOARD COMPANY EVOLENT HEALTH, INC.
/s/ Frank Williams
By: By: Frank Williams
Its: Its: CEO
| Entailment |
622_nda-2 | 622_nda-2_0 | Q: Confidential Information shall only include technical information.
Text: Exhibit 10.16
AMENDED AND RESTATED
SERVICES, RESELLER AND NON-COMPETITION AGREEMENT
THIS AMENDED AND RESTATED SERVICES, RESELLER AND NON-COMPETITION AGREEMENT (this “Agreement”) is made and entered into effective as of June 27, 2013 (the “Effective Date”) by and between The Advisory Board Company, a Delaware corporation (“ABCO”), and Evolent Health, Inc. (f/k/a VPHealth, Inc.), a Delaware corporation (“Evolent”), (each, a “Party”, and collectively, the “Parties”).
RECITALS
WHEREAS, ABCO and Evolent entered into a Services, Reseller and Non-Competition Agreement (the “Original Agreement”), effective as of August 31, 2011 (the “Original Effective Date”);
WHEREAS, since entering into the Original Agreement, Evolent and ABCO have continued to explore ways to improve the efficiency and implementation of their relationship; and
WHEREAS, as a result of the foregoing efforts, the Parties have agreed to amend and restate the Original Agreement as set forth in this Agreement.
NOW, THEREFORE, in consideration of the above recitals, the terms and conditions hereinafter set forth, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto agree as follows:
1. DEFINITIONS. For purposes of this Agreement:
1.1 “ABCO Restricted Products and Services” means (a) care management services including, but not limited to, traditional disease management services, direct patient outreach and other service-based care management offerings (e.g., readmissions management teams, nurse call centers, on-site care management teams); (b) care management workflow software designed for and used by provider-owned payor organizations or other entities intending to conduct active care management campaigns targeted at managing population health/longitudinal outcomes (i.e, solutions that are the same as or substantially similar to (i.e. functionality that is redundant in substantial and material respects with) HealthPlaNet); (c) services primarily intended to support cost reduction and benefit changes for health system employees; (d) consulting services comparable and competitive with blueprint consulting services offered by Evolent as of the Effective Date (“Blueprint Services”), (e) Exclusive TPA Services or (f) Crimson Care Registry products. For the avoidance of doubt, Restricted Products and Services does not include behavioral health-related services or software (e.g., Askesis Development Group software), services similar to those offered by UPMC WorkPartners (e.g., “Take-a-Healthy-Step” or similar health and wellness programs, occupational medicine, on-site clinic implementation and administration, employee assistance services, absence management or workers’ compensation services), or software or solutions similar to those offered by EBenefits Solutions, LLC.
1.2 “Active Sales Process”, with respect to any Person as of any date on which Evolent proposes to add such Person to the list of Evolent Top Prospects, means such Person (a) is not an Evolent Client as of such date and (b) either (i) has purchased ABCO Restricted Products and Services from ABCO prior to such date or (b) was engaged in active discussions with ABCO about acquiring ABCO Restricted Products and Services (including, but not limited to, a review of the applicable offering of ABCO Restricted Products and Services) as of such date.
1.3 “Affiliate” means any Person which Controls, is Controlled by, or is in common Control with, another Person.
1.4 “Business Plan” has the meaning set forth in that certain Intellectual Property License and Data Access Agreement between the Parties.
1.5 “Change of Control” with respect to any entity means a transaction or series of related transactions in which a Person, or a group of related Persons, acquires from stockholders of the subject entity, the entity’s shares representing more than fifty percent (50%) of the outstanding voting power of such entity.
1.6 “Confidential Information” means any and all technical and non-technical information, whether conveyed verbally, in writing, electronically or by any other means, including, but not limited to, trade secrets, source code, technology, know-how and proprietary information, techniques, plans or any other information relating to any research project, analysis, work in process, future development, scientific, engineering, marketing or business plans or financial, contractual or personnel matters relating to either Party or its present or future products, services, sales, suppliers, identity of and information relating to customers and prospective customers, customer or prospect list, prospective employees, investors or affiliates or other proprietary information disclosed or otherwise supplied in confidence by either Party to the other, to the extent that such information is provided pursuant to this Agreement by one Party to the other Party and is marked “confidential” or “proprietary” or that should be reasonably understood by the Receiving Party (based on the nature of the information or the context in which the information is disclosed) should be considered confidential. Confidential Information will not include information to the extent that: (a) such information is or becomes publicly available other than through any act or omission of either Party in breach of this Agreement; (b) such information was received by the Receiving Party, other than under an obligation of confidentiality, from a third party who had no obligation of confidentiality to the other Party; (c) such information was in the possession of the Receiving Party at the time of the disclosure or was independently developed by the Receiving Party, as reflected by the Receiving Party’s internal, written and dated documentation; or (d) an applicable regulation, court order or other legal process requires the disclosure of such information, provided that prior to such disclosure the Disclosing Party will give notice to the other Party so that the other Party may take reasonable steps to oppose or limit such disclosure, so that the Disclosing Party does not disclose any more information than necessary to comply with such legal process. The burden of proof that Confidential Information falls into any one of the above exemptions will be borne by the Party claiming such exemption with documentation or other credible evidence.
1.7 “Control” as used with respect to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities, by agreement or otherwise.
1.8 “Evolent Clients” means entities under a current contract with Evolent for an implementation and/or long-term services contract. 1.9 “Evolent Top Prospects” means, as of any date, up to twenty (20) potential Evolent customers in the Evolent sales pipeline identified by Evolent that are not Evolent Clients as of such date, and (a) are engaged in active discussions with Evolent regarding purchasing Evolent products and services and/or (b) are under a current contract with Evolent for Blueprint Services or other services that do not constitute implementation or long-term services; provided, however, that (i) the list of such potential Evolent customers may be updated by Evolent on a quarterly basis, and ABCO shall have the opportunity upon receipt of each such quarterly update to notify Evolent if any of the Persons added to such list are in an Active Sales Process with ABCO and shall therefore be removed from such list, and (ii) no Person shall remain on the list of Evolent Top Prospects for more than (x) twelve (12) consecutive months, in the case of potential Evolent customers without a signed agreement with Evolent, or (y) twenty-four (24) consecutive months, in the case of potential Evolent Clients that signed an agreement for Blueprint Services with Evolent before or within twelve (12) months of being added to the list of Evolent Top Prospects.
1.10 “Exclusive TPA Services” means certain services as set forth on Schedule 1 of the UPMC Reseller Agreement (as in effect on the Effective Date), to the extent that UPMC Health Plan, Inc., a Pennsylvania nonprofit corporation (“UPMC”), has the exclusive right to provide such services to Evolent, for resale by Evolent to its customers.
1.11 “Disclosing Party” means a Party that provides Confidential Information to the other Party, or the other Party’s Affiliates.
1.12 “Governmental Authority” means any federal, state, municipal, local, territorial, or other governmental department, regulatory authority, judicial or administrative body, whether domestic, foreign or international.
1.13 “Law” means all international, federal, country, state, provincial, local and other laws, rules and regulations, declaration, decree, directive, legislative enactment, order, code, ordinance, regulation, rule or other binding restriction of or by any Governmental Authority, as the same are promulgated, supplemented or amended from time to time.
1.14 “Loss” individually, and collectively, “Losses” means all claims, liabilities, obligations, losses, costs, expenses (including, without limitation, legal, accounting and similar expenses), litigation, proceedings, fines, taxes, levies, imposts, duties, deficiencies, assessments, charges, penalties, allegations, demands, damages (including, but not limited to, actual, punitive or consequential, foreseen or unforeseen, known or unknown, fixed or contingent, and matured or unmatured), civil and criminal violations of Law, settlements and judgments of any kind or nature whatsoever.
1.15 “Person” means any individual, corporation, partnership, firm, joint venture, association, limited liability company, limited liability partnership, joint-stock company, trust, joint venture, unincorporated organization, governmental, judicial or regulatory body, business unit, division or any other business entity, organization or Governmental Authority.
1.16 “Receiving Party” means a Party that receives Confidential Information from the other Party or the other Party’s Affiliates.
1.17 “Statement of Work” or “SOW” means an agreement by and between ABCO and Evolent that contains the detailed description of services, scope, specifications, pricing, implementation plan, timetables, milestones, and other terms and conditions for each procurement of services, as applicable.
1.18 “UPMC Reseller Agreement” means that certain Second Amended and Restated Reseller, Services and Non-Competition Agreement between UPMC and Evolent dated as of [the Effective Date].
2. SERVICES TO BE PROVIDED BY ABCO.
2.1 General Services:
2.1.1 Minimum Purchase. The Parties hereby acknowledge and agree that Evolent has purchased from ABCO a minimum of Two Hundred Thousand Dollars ($200,000) of services (as described in Section 2.2.1) (the “Original Minimum Purchase”) for delivery between the Original Effective Date and the first anniversary thereof.
2.1.2 Statements of Work. The specific description, price, service levels (if applicable) and other project, service, and/or customer-specific terms for a particular service that may be provided by ABCO to Evolent (each, a “Service”, and collectively, the “Services”) shall be set forth in a Statement of Work that will be created on a project by project basis.
2.2 Right of First Offer and Process for Invoking:
2.2.1 Applicable Services. Throughout the Term, ABCO shall have the right of first offer to provide the following services to Evolent and Evolent’s customers:
(a) Physician practice management consulting and other physician practice management services;
(b) Physician incentive design services;
(c) Medical home development consulting services; and
(d) Performance analytics shared with physicians with the intent to improve outcomes.
2.2.2 Process for Exercising Right of First Offer. Evolent shall notify ABCO in writing in the event Evolent desires to receive any of the above services (“First Offer Services”). ABCO shall have a period of thirty (30) days (“First Offer Services Evaluation Period”) within which to conduct its evaluation and diligence with respect to providing such First Offer Services. Evolent shall cooperate with ABCO and provide reasonable assistance and information to ABCO to enable ABCO to conduct its evaluation. Within five (5) business days after the expiration of such First Offer Services Evaluation Period, ABCO shall notify Evolent in writing whether or not it wishes to provide such services to Evolent. If ABCO elects to provide such First Offer Services, Evolent agrees to engage in good faith negotiations with ABCO, on an exclusive basis for a period of sixty (60) days, regarding the specific terms covering such First Offer Services.
2.3 Failure to Execute a Service Agreement for the VBC Innovation Center: The Parties acknowledge and agree that it was their intent as of the Original Effective Date to enter into a service agreement under which Evolent would engage ABCO to provide certain consulting, development and support services in connection with the creation, launch, implementation and ongoing support of a Value-Based Care Innovation Center (the “VBC Innovation Center”), in consideration for which Evolent would pay ABCO a fixed fee of Eight Hundred Thousand Dollars ($800,000) per year (“Fixed Fee”) for each of the first two (2) years of the term of such VBC Innovation Center service agreement. The Parties acknowledge and agree that, notwithstanding the fact that they negotiated with diligence and in good faith the specific terms and conditions of such service agreement, the Parties were unable to reach an agreement with respect to the VBC Innovation Center. Accordingly, the Original Minimum Purchase is increased to One Million Two Hundred Thousand Dollars ($1,200,000) (the “Minimum Purchase”) as follows: (a) between the Original Effective Date and the second anniversary thereof, Evolent shall have purchased from ABCO a minimum of Seven Hundred Thousand Dollars ($700,000) of services for delivery on or prior to such second anniversary of the Original Effective Date), and (b) inclusive of the purchases described in clause (a), between the Original Effective Date and the third anniversary thereof, Evolent shall have purchased from ABCO a minimum of One Million Two Hundred Thousand Dollars ($1,200,000) of services for delivery on or prior to such third anniversary of the Original Effective Date); provided that, for purposes of this sentence, “services” shall include consulting, software, professional or analytic services provided from time to time by ABCO to Evolent (other than services in connection with the provision of any office space by or on behalf of ABCO to Evolent) or, pursuant to a joint written proposal by ABCO and Evolent, to any Evolent Client.
2.4 Reservation of Rights: For the avoidance of doubt, Evolent is not precluded from offering and providing services directly to its customers, subject (a) to (i.e., after ABCO has had the full opportunity to exercise) ABCO’s right of first offer to provide any First Offer Services in accordance with Section 2.2) and (b) to Evolent’s compliance with its non-competition obligations as set forth in Section 6.2.
2.5 Designation of Relationship Managers: In order to support the launch and ongoing success of the exclusive reseller relationship between ABCO and Evolent, each Party agrees to designate a senior level individual who will serve as the primary liaison and “go to” contact and relationship manager for such Party (each, a “Relationship Manager”). Each Party’s Relationship Manager’s role and responsibilities would include: (a) facilitating day-to-day communications between the Parties regarding customer-facing activities, such as marketing, promotional and sales activities and preparing and submitting bids, proposals, responses to requests for proposals, fee estimates, Statements of Work and project plans; (b) receiving and submitting requests between the Parties for information and/or assistance; (c) overseeing the efficient knowledge transfer and flow of information between the Parties; (d) facilitating communications between the appropriate individuals within Evolent and ABCO, with respect to product and service offering development; and (e) providing the first level of performance review or escalation in the event of a Dispute as provided in Section 13. The Relationship Managers will meet regularly, but no less frequently than monthly, as reasonably necessary, to maintain a good working relationship between the Parties. Each Party may change its Relationship Manager by giving the other Party reasonable notice as long as the change is implemented in a manner that does not cause any significant disruption to each Party’s business operations and business relationship.
3. FEES; PAYMENT TERMS; SHORTFALL.
3.1 Fees; Timing of Payments: Evolent shall pay ABCO the applicable fees for the Services performed by ABCO pursuant to a Statement of Work, as follows: (a) unless the Parties otherwise agree in writing, a deposit of 50% of the total fees for the particular project shall be paid upon signing of the Statement of Work; (b) ABCO will submit an invoice to Evolent for the balance upon completion of the work; and (c) Evolent shall pay ABCO for such invoiced amount within thirty (30) days after receipt of such invoice.
3.2 Minimum Purchase and Shortfall: Evolent agrees to pay ABCO the Minimum Purchase. If the aggregate amount of Services actually procured by Evolent from ABCO is not equal to or greater than (a) Seven Hundred Thousand Dollars ($700,000) of services for delivery on or prior to the second anniversary of the Original Effective Date or (b) inclusive of the purchase described in clause (a), the Minimum Purchase of services for delivery on or prior to the third anniversary of the Original Effective Date, Evolent shall pay ABCO the amount of the shortfall (i.e., the difference between Seven Hundred Thousand Dollars ($700,000) or the Minimum Purchase amount, as applicable, less the sum of: (a) the aggregate fees for the actual amount of Services procured; and (b) any Credits (as provided in the next sentence) (the “Shortfall”), if any, on or before August 31, 2013 or August 31, 2014, as applicable. In the event that ABCO refuses or fails, without reasonable cause, to provide any of the Services requested by Evolent (provided the scope of the Services requested is within the scope customarily provided by ABCO), the fees that would otherwise have been applicable had ABCO agreed to provide such Services would count as a “Credit”. As of the date hereof, no such Credits have accrued.
4. TERM AND RENEWAL. The initial term of this Agreement shall commence on the Effective Date and unless sooner terminated in accordance with the terms hereof, shall continue until August 31, 2016 (“Initial Term”). Thereafter, this Agreement shall automatically be renewed for another five-year term (“Renewal Term”) unless either Party elects to terminate this Agreement by providing the other Party with written notice of termination one hundred eighty (180) days prior to the expiration of the current term. (“Initial Term” and “Renewal Term” collectively, the “Term”).
5. REFERRAL FEES, SOLICITATION AND COMPETITION AND POST-CLOSING SERVICES.
5.1 Referral Fees:
5.1.1 During the Term, ABCO will pay Evolent a sales referral fee for any sale made by ABCO that resulted from a “net” new sale from a new customer that was not already in ABCO’s sales pipeline (i.e., a “warm lead”) or a then-current customer of ABCO generated directly by Evolent’s efforts and without any assistance from any ABCO employee or representative (including any Evolent employee that serves on the Board of Directors of ABCO), equal to 5% of the total ABCO revenue from the new customer during the initial twelve (12) months of services under the services agreement with such new customer.
5.1.2 During the Term, Evolent will pay ABCO a sales referral fee for any sale made by Evolent that resulted from a “net” new sale from a new customer that was not already in Evolent’s sales pipeline (i.e., a “warm lead”) or a then-current customer of Evolent generated directly by ABCO’s efforts and without any assistance from any Evolent employee or representative (including any ABCO employee that serves on the Board of Directors of Evolent), in accordance with the following terms:
(a) ABCO will receive a one-time referral fee for any “employee health” diagnostic, consulting or broker services provided by Evolent to a Covered Health System, equal to the lesser of $20,000 or 5% of the total Evolent revenue from the Covered Health System during the initial twelve (12) months of services under the service agreement with such Covered Health System.
(b) ABCO will receive $50,000 per year for three (3) years for each health system joining Evolent as an Employee Health Platform Customer. An “Employee Health Platform Customer” is defined as a health system purchasing diagnostic/consulting services and ongoing medical management/health plan services (i.e., care management, HealthPlaNet care management application, and the TPA platform, etc.).
(c) ABCO will receive $100,000 per year for three (3) years for a health system joining Evolent as a Platform Health Plan Customer. A “Platform Health Plan Customer” is defined as a health system purchasing ongoing medical management services, ongoing health plan outsourcing services (i.e., TPA) and health plan management services for purposes of a licensed insurance entity with at least fifty thousand (50,000) lives (beyond the employee population).
(d) With the exception of making the introduction (either through an email or an in-person meeting) (to generate the “warm lead”), ABCO would not be expected to perform any actual duties or incur actual cost to receive a referral fee.
(e) The annual referral fees for each referral would be capped at the lesser of (x) 5% of annual revenue generated by Evolent for the respective customer and (y) the $50,000 or $100,000 figures described above, as applicable.
6. SOLICITATION AND COMPETITION.
6.1 Scope:
6.1.1 Throughout the Term, ABCO agrees not to offer any ABCO Restricted Products and Services to (a) any Evolent Clients or (b) any Evolent Top Prospects; provided, however, that ABCO shall not be restricted from making any such offer to any Evolent Top Prospect or Evolent Client with whom ABCO was, at the time such Person was identified as an Evolent Top Prospect or became an Evolent Client, engaged in an Active Sales Process. The foregoing restrictions shall not apply in the event of a Change of Control of Evolent or in the event that ABCO ceases to be a shareholder of Evolent.
6.1.2 None of the foregoing would prohibit ABCO from:
(a) Marketing, offering, licensing or selling versions of any of its Crimson Population Risk Management products, or the successors to any such products, provided that such products, or the successors to any such products, are not the same as or substantially similar to (i.e., includes functionality that is redundant in substantial and material respects with) HealthPlaNet as it exists as of the Effective Date.
(b) Supporting employers with care management related best practices and research.
(c) Offering traditional “dedicated advisor” support in conjunction with ABCO’s traditional business intelligence offerings.
(d) Marketing, offering, licensing or selling its employer health product.
(e) Providing physician management consulting and other physician management services.
6.2 Restrictions Relating to Certain ABCO Products and Services: Evolent shall not, until the earlier of (x) ABCO’s ceasing to be a shareholder of Evolent or (y) the seventh (7 ) anniversary of the date of this Agreement, promote, market, provide, offer or sellth (a) unbundled software applications, software tools or other similar technologies (including, without limitation, software as a service, analytics technology or data services) (each, a “Technology Solution”), (b) consulting services that are not intended to lead to or be a part of a Blueprint Services engagement, implementation contract and/or long-term services contract, or (c) any best practices membership programs or unbundled or bundled physician practice management and other physician practice management consulting services, in each case referred to in this clause (c) that are substantially similar to, or that are competitive with, ABCO’s best practices membership programs or physician practice management or other physician practice management consulting services that are offered by ABCO as of the date first written above. For the avoidance of doubt, “unbundled” means on a stand-alone basis, instead of “bundled”, which contemplates that the Technology Solution is both (i) offered as part of a “packaged”, integrated offering, in conjunction with other Evolent products or services that are not Technology Solutions (and not only services that constitute customary software, data and end user support-related services), such as the Exclusive TPA Services, and (ii) incidental to the provision of such other Evolent products or services. Notwithstanding any other provision hereof, the foregoing restrictions in this Section 6.2 shall survive a Change of Control of Evolent for seven (7) years from the date of this Agreement; provided, however, that prior to the seventh (7 ) anniversary of the date of thisth Agreement, the acquiring party in a Change of Control of Evolent shall be not be subject to the foregoing restrictions with respect to any Technology Solutions or consulting services, in each case, that are unrelated to the Evolent assets acquired.
6.3 Non-Solicitation or Hiring: During the Term and for a period of eighteen (18) months thereafter, Evolent shall not solicit or hire any of ABCO’s employees without ABCO’s prior written consent.
7. EXCLUSIVE RESELLER RIGHTS FOR FUTURE PRODUCTS.
In the event that Evolent creates a discrete or segregable product or service that can be sold to healthcare providers, Evolent shall notify ABCO in writing of such new offerings (“New Products”). ABCO shall have a period of ninety (90) days (“New Products Evaluation Period”) within which to conduct its evaluation and diligence with respect to providing such New Products. Evolent shall cooperate with ABCO and provide reasonable assistance and information to ABCO to enable ABCO to conduct its evaluation. Within five (5) business days after the expiration of such New Products Evaluation Period, ABCO shall notify Evolent in writing whether or not it wishes to have the right to resell such New Products. If ABCO elects to resell such New Products, Evolent and ABCO agree to negotiate in good faith on an exclusive basis for one hundred twenty (120) days the terms of a reseller agreement, under which ABCO would be the exclusive distributor (in addition to Evolent) of such New Products.
8. CONFIDENTIALITY.
8.1 Confidential Information: ABCO acknowledges that in connection with its rights and obligations under this Agreement it may gain access to the Confidential Information of Evolent and its customers and Affiliates. Evolent acknowledges that in connection with its rights and obligations under this Agreement, it may gain access to the Confidential Information of ABCO and its customers and Affiliates.
8.2 Non-Disclosure: The Receiving Party may disclose the Disclosing Party’s Confidential Information strictly on a need-to-know basis to only those personnel, including employees of the Receiving Party’s contractors, who require access to the Disclosing Party’s Confidential Information in order to perform or derive benefit from the Services or otherwise meet its obligations under this Agreement. The Receiving Party agrees: (a) to hold the Disclosing Party’s Confidential Information in strict confidence, using the same degree (but no less than a reasonable degree) of care and protection that it exercises with its own Confidential Information of a similar nature; (b) not to directly or indirectly disclose or otherwise make available any Confidential Information of the Disclosing Party to a third party; and (c) not to copy or use the Disclosing Party’s Confidential Information for any purpose other than as necessary to fulfill the Receiving Party’s obligations or exercise its rights under this Agreement. Each Receiving Party is responsible for ensuring that its employees, agents and contractors strictly abide by the requirements of confidentiality and restrictions on use as provided in this Section 8.2 and shall be liable to the Disclosing Party for any acts or omissions of its employees, agents and independent contractors relating to the Disclosing Party’s Confidential Information. The Receiving Party is allowed to disclose Confidential Information of the Disclosing Party to the extent required by Law or by the order or a court of similar judicial or administrative body with jurisdiction, provided that the Receiving Party notifies the Disclosing Party of such required disclosure promptly and in writing and cooperates with the Disclosing Party, at the Disclosing Party’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure. The provisions of this Section 8 shall survive beyond the expiration or termination of this Agreement.
8.3 Injunctive Relief: The Parties acknowledge and agree that monetary damages may be inadequate to compensate for a breach of the provisions contained in this Section 8 or other confidentiality provisions of this Agreement. In the event of such breach, the injured Party shall be entitled to seek injunctive relief (without the need to post bond) and any and all other remedies available at Law or in equity. This Section 8.3 in no way limits the liability or damages that may be assessed against a Party in the event of a breach by the other Party of any of the provisions of this Section 8.
8.4 Residuals: Notwithstanding anything in this Section 8 to the contrary, subject to any applicable statutory intellectual property rights applicable to patents, trademarks or copyrights, either Party may use “Residuals” for any purpose, including without limitation, for use in development, manufacture, promotion, sale and maintenance of its products and services; provided, however, that this right to Residuals does not represent a license under any patents, copyrights or trademarks of the Disclosing Party. The term “Residuals” means any information that is retained in the unaided memories of the Receiving Party’s employees who have had access to the Disclosing Party’s Confidential Information pursuant to the terms of this Agreement.
9. WARRANTIES.
9.1 Authority/No Conflict: ABCO represents and warrants that (a) it has the power and authority to enter into and perform its obligations under this Agreement without conflict with, default under, or violation of any Law, regulation, or agreement binding upon it, and (b) this Agreement has been duly authorized by all necessary organizational action, and duly and validly executed and delivered by it, and constitutes its legally valid and binding obligation, enforceable in accordance with its terms.
9.2 Services: ABCO represents, warrants and covenants that the Services provided under this Agreement will be performed in a professional and workmanlike manner.
9.3 Compliance with Laws/Approvals: Each of ABCO and Evolent shall comply in all material respects with all Laws and regulations applicable to ABCO or Evolent, as applicable, in performing its obligations under this Agreement. To the extent applicable, ABCO shall be responsible for obtaining all necessary permits, licenses, and consents, including governmental approvals, required of ABCO and its contractors in connection with the performance of its obligations under this Agreement, and Evolent shall be responsible for obtaining all necessary permits, licenses, and consents, including governmental approvals, required of Evolent and its contractors in connection with the performance of its obligations under this Agreement.
9.4 Limitations of Warranty: EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, ABCO MAKES NO OTHER WARRANTY OR REPRESENTATION, ORAL, WRITTEN, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE SERVICES, INCLUDING WITHOUT LIMITATION, THEIR QUALITY, PERFORMANCE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, UNINTERRUPTED OR ERROR-FREE OPERATION OR OTHERWISE HEREUNDER. The disclaimer of warranties and limitations set forth in this Agreement constitute an essential part of this Agreement.
10. INDEMNIFICATION.
10.1 IP Indemnification: ABCO shall defend, indemnify and hold harmless Evolent and its Affiliates (other than ABCO), customers, and their respective officers, directors and employees from and against any Losses resulting from a claim that the Services provided by ABCO under this Agreement infringes or misappropriates a third party’s intellectual property rights. ABCO shall also use commercially reasonable efforts to modify the allegedly infringing Services to make it non-infringing, procure a license from the third party claiming infringement to permit Evolent to continue to use the Services, or provide Evolent with functionally equivalent and non-infringing Services. THIS SECTION 10.1 SETS FORTH ABCO’S SOLE AND EXCLUSIVE LIABILITY, AND EVOLENT’S SOLE AND EXCLUSIVE REMEDY, FOR ALLEGATIONS OR CLAIMS OF INFRINGEMENT OF THIRD PARTY RIGHTS OF ANY KIND ASSERTED AGAINST EVOLENT, ITS AFFILIATES (OTHER THAN ABCO), CUSTOMERS AND THEIR RESPECTIVE OFFICERS, DIRECTORS AND EMPLOYEES. ABCO shall not be obligated to indemnify Evolent, its Affiliates, customers, and their respective officers, directors and employees for infringement or misappropriation claims to the extent such claims arise out of use by Evolent or its customers of any of the Services in a manner other than as contemplated by the Parties under this Agreement.
10.2 ABCO’s Indemnification: ABCO hereby agrees to indemnify, defend, and hold Evolent and its Affiliates (other than ABCO), and all of their respective directors, officers, members, managers, partners, employees, agents, successors and assigns, harmless from and against any Losses arising from or related to: (a) the material breach of this Agreement, including any or all SOWs, by ABCO or its personnel (including contractors); (b) breach of any of ABCO’s representations, warranties, and covenants in this Agreement; or (c) negligence or willful misconduct by ABCO or its personnel (including contractors).
10.3 Evolent’s Indemnification: Evolent hereby agrees to indemnify, defend, and hold ABCO and its Affiliates (other than Evolent), and all of their respective directors, officers, members, managers, partners, employees, agents, successors and assigns, harmless from and against any Losses arising from or related to: (a) the material breach of this Agreement, including any or all SOWS, by Evolent or its personnel (including contractors); (b) breach of any of Evolent’s representations, warranties and covenants in this Agreement; or (c) negligence or willful misconduct by Evolent or its personnel (including contractors).
10.4 Indemnification Procedure:
10.4.1 Notice of Claim. Any Party seeking indemnification hereunder (the “Indemnitee”) shall notify the Party liable for such indemnification (the “Indemnitor”) in writing of any event, omission or occurrence that the Indemnitee has determined has given or could give rise to Losses that are indemnifiable hereunder (such written notice being hereinafter referred to as a “Notice of Claims”). Such Notice of Claims shall be given promptly after the Indemnitee becomes aware of its own claim or that of a third party; provided that the failure of any Indemnitee to give notice as provided in this Section 10.4.1 shall not relieve the Indemnitor of its obligations under this Section 10. A Notice of Claims shall specify in reasonable detail the nature and any particulars of the event, omission, or occurrence giving rise to a right of indemnification. The Indemnitor shall satisfy its obligations hereunder, as the case may be, within thirty (30) days of its receipt of a Notice of Claims.
10.4.2 Process. With respect to any third party claim, demand, suit, action, or proceeding that is the subject of a Notice of Claim, the Indemnitor shall, in good faith and at its own expense, defend, contest, or otherwise protect against any such claim, demand, suit, action, or proceeding with legal counsel of its own selection (and reasonably acceptable to the Indemnitee). The Indemnitee shall have the right, but not the obligation, to participate, at its own expense, in the defense thereof through counsel of its own choice and shall have the right, but not the obligation, to assert any and all cross claims or counterclaims it may have. So long as the Indemnitor is defending in good faith any such third party claim, demand, suit, action or proceeding, the Indemnitee shall at all times cooperate, at its own expense, in all reasonable ways with, make its relevant files and records available for inspection and copying by, and make its employees available or otherwise render reasonable assistance to, the Indemnitor. In the event that the Indemnitor fails to timely defend, contest or otherwise protect against any such third party claim, demand, suit, action, or proceeding, the Indemnitee shall have the right, but not the obligation, to defend, contest, assert cross claims or counterclaims, or otherwise protect against, the same and may make any compromise or settlement thereof and be entitled to all amounts paid as a result of such third party claim, demand, suit, or action or any compromise or settlement thereof. The Indemnitor will not consent to the entry of any judgment or enter into any settlement with respect to any such third party claim, demand, suit, action or proceeding without the prior written consent of the Indemnitee, which will not be unreasonably withheld, and provided that no settlement shall require the Indemnitee to admit liability, or perform or become subject to additional obligations thereunder.
11. LIMITS OF LIABILITY. EXCEPT WITH RESPECT TO OR BREACH BY EITHER PARTY OF THE OTHER PARTY’S CONFIDENTIAL INFORMATION UNDER SECTION 8,
NEITHER EVOLENT NOR ABCO SHALL BE LIABLE FOR, NOR WILL THE MEASURE OF DAMAGES INCLUDE, ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OR AMOUNTS INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF INCOME, PROFITS, OR SAVINGS, LOSS OF DATA, OR COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES, ARISING OUT OF OR RELATING TO ITS PERFORMANCE UNDER THIS AGREEMENT UNDER ANY CAUSE OF ACTION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL EITHER PARTY’S LIABILITY EXCEED THE AMOUNT OF REVENUE ACTUALLY RECEIVED BY ABCO IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO THE CLAIM.
12. TERMINATION.
12.1 Termination for Cause: Either Party shall have the right to terminate this Agreement in the event the other Party materially violates a material provision of this Agreement and such violation is not cured or cannot be cured within thirty (30) days after written notice of such material violation.
12.2 Survival: The rights and obligations contained in Sections 1, 5 (with respect to Evolent’s payment obligations that may extend beyond the Term), 6.2, 6.3, 8, 9.4, 10, 11, 12.2, 13 and 14 shall survive any termination or expiration of this Agreement.
13. ESCALATION; DISPUTE RESOLUTION. Subject to the terms of Section 13.5, the procedures of this Section 13 will control the resolution of any and all disputes between the Parties including, without limitation, any dispute relating to disputed monies owing or breach of warranty (each, a “Dispute”). The Parties will seek to resolve each Dispute as follows:
13.1 First Level Performance Review: Each Party’s Relationship Manager will meet as often as will reasonably be required by either Party to review the performance of either Party under this Agreement and to resolve the Dispute. If these representatives are unable to resolve the Dispute within ten (10) business days after the initial request for a meeting, then the Parties will submit the Dispute to an executive level performance review as provided in Section 13.2 below.
13.2 Executive Level Performance Review: Face-to-face negotiations will be conducted by a senior executive officer of each Party (or such other executive as a Party may designate). If these representatives are unable to resolve the Dispute within five (5) business days after the Parties have commenced negotiations or ten (10) business days have passed since the initial request for a meeting at this level, then the Parties may jointly engage the services of a third-party mediator.
13.3 Arbitration: If the Parties are unable to resolve the Dispute through the alternative mechanisms described above, the Parties shall submit the Dispute for resolution through binding arbitration, except as otherwise provided in Section 13.5. The Parties agree and consent to such arbitration proceeding taking place in Wilmington, Delaware, and in accordance with the Commercial Arbitration Rules of the American Arbitration Association, except that discovery may be had in accordance with the Federal Rules of Civil Procedure. The Parties shall be permitted at least six (6) months from the date of the filing of the Arbitration Demand to conduct discovery. The arbitration proceedings shall be conducted by a panel of three (3) impartial arbitrators, with each Party selecting one (1) of the impartial arbitrators and those two (2) arbitrators then selecting the third impartial arbitrator, all such selections to be made through the procedures of the American Arbitration Association. At least one (1) arbitrator must be an attorney licensed under the Laws of Pennsylvania and at least one (1) arbitrator (may be the same Person as the Pennsylvania attorney) must have direct and substantial experience in the industry pertinent to the subject matter of the Dispute. Judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof; provided, however, in rendering its decision, the arbitrators shall be bound by the Laws of the Commonwealth of Pennsylvania (without regard to its conflicts of laws provisions) and by the terms and conditions of this Agreement setting forth the rights and responsibilities of the Parties. The decision of the arbitration panel shall be accompanied by a written opinion setting forth the factual and legal bases for the award. The arbitrators shall issue such written decision within thirty (30) days of the conclusion of the arbitration hearing. The arbitrators appointed hereunder shall not have the power to award punitive damages. Service of a petition to confirm the arbitration award may be made by United States mail, postage prepaid, or by any regularly conducted commercial express mail service, to the attorney for the Party or, if not so represented, to the Party at the address set forth herein, or to the Party’s last known business address. The prevailing Party in any action related to or arising under this Agreement shall be entitled to reasonable attorneys’ fees and costs.
13.3.1 For any Dispute in which the amount in controversy is at least One Million Dollars ($1,000,000), the following additional procedures apply:
(a) a certified court reporter shall transcribe the arbitration hearings; The Parties initially split the cost of the reporter, but such costs shall ultimately be awarded to the Party prevailing in the arbitration proceeding; and
(b) either Party may take an appeal from the final decision by making a written demand within twenty (20) days of the award.
13.3.2 Any such appeal shall be conducted as follows:
(a) such appeals are limited to issues of Law (i.e., the original award (1) contains material errors of Law such that the original award is not founded on any appropriate legal basis; (2) is based on factual findings clearly unsupported by the record; or (3) is subject to one or more grounds set forth in Section 10 of the Federal Arbitration Act or 42 Pa. C.S.A. §7341 for vacating an award);
(b) the Person hearing the appeal shall be a former federal judge mutually agreed to by the Parties or selected through the procedures of the American Arbitration Association. The former judge shall act as the appellate arbitrator;
(c) the submissions on appeal are limited to (1) the record of the arbitration, (2) a 30-page brief by the appellant, (3) a 30-page brief by the appellee and (4) a 10-page response by the appellant. The appellate arbitrator will set the dates for submission of the briefs. Oral argument may be heard at the discretion of the appellate arbitrator;
(d) the appellate arbitrator shall render a written decision within sixty (60) days of the final submission;
(e) during the pendency of the arbitration appeal, the Parties agree to suspend any running of the time to seek enforcement of the original award. The Parties also agree to waive any appeal to state or federal courts based on the grounds set forth in Section 10 of the Federal Arbitration Act for vacating an award and 42 Pa. C.S.A. § 7341;
(f) the appellate arbitrator must award costs and attorneys’ fees to the prevailing Party; and
(g) the decision of the appellate arbitrator shall be final.
13.4 Continued Performance: Each Party acknowledges that the timely and complete performance of its obligations pursuant to this Agreement is critical to the business and operations of the other Party. Accordingly, in the event of a Dispute, each Party shall continue to so perform all of its obligations under this Agreement, in good faith during the resolution of such Dispute unless and until (a) authority to stop doing so is granted or conferred by a court of competent jurisdiction or (b) this Agreement is terminated in accordance with the provisions hereof.
13.5 Equitable Relief: Notwithstanding anything contained in this Agreement to the contrary, the Parties will be entitled to seek injunctive relief, specific performance or other equitable relief whenever the facts or circumstances would permit a Party to seek equitable relief in a court of competent jurisdiction. Without limiting the generality of the foregoing, (a) Evolent agrees that there would be irreparable harm to ABCO in the event of any such breach by Evolent of Section 6.2 and ABCO shall be entitled to (i) injunctive relief to prevent breaches of Section 6.2, (ii) specific performance of this Agreement, and (iii) any other remedies provided by Law or equity, including without limitation an award for damages, and (b) ABCO agrees that there would be irreparable harm to Evolent in the event of any such breach by ABCO of Section 6.1.1, and Evolent shall be entitled to (i) injunctive relief to prevent breaches of Section 6.1.1, (ii) specific performance of this Agreement, and (iii) any other remedies provided by Law or equity, including without limitation an award for damages.
14. MISCELLANEOUS PROVISIONS.
14.1 Good Faith and Mutual Agreement: Unless otherwise expressly stated in such provision, if a provision in this Agreement calls for the consent of a Party or the mutual agreement of the Parties, the Parties agree that each will act in good faith, will not unreasonably withhold their consent and that deference shall be given to the other Party’s reasonable business requirements, and the requirements of the Parties’ respective regulators and internal controls procedures.
14.2 Independent Contractor: The relationship of ABCO to Evolent shall at all times be that of an independent contractor. Nothing in this Agreement shall be construed to create any partnership, association, joint venture, or employment between the Parties. Each Party shall have the sole and exclusive control over the labor and employee relations policies and policies relating to wages, hours, working conditions, benefits, or other conditions of its personnel and shall be responsible and liable for the acts and omissions of its employees, agents and contractors.
14.3 Assignability: Evolent has entered into this Agreement because of the expertise of ABCO, and ABCO understands that the obligations of ABCO are personal to ABCO and may not be assigned to any other company, partnership or individual without the express written consent of Evolent; provided, however, that no consent shall be required if an assignment is made in connection with a sale of all or substantially all of ABCO’s assets or stock, or in connection with a merger or Change of Control. Evolent may assign this Agreement (including the licenses granted pursuant to this Agreement) to any Affiliate of Evolent as part of an internal reorganization or in connection with a sale of substantially all of its assets or stock, or in connection with a merger or Change of Control.
14.4 Governing Law and Jurisdiction: This Agreement shall be governed by and construed and enforced in accordance with the Laws of the Commonwealth of Pennsylvania, without regard to that state or any other state’s conflicts of law rules. Each Party irrevocably consents to the personal jurisdiction of the state and federal courts located in Wilmington, Delaware for any suit or action arising from or related to this Agreement.
14.5 Force Majeure: Neither Party shall be deemed in default of this Agreement to the extent that performance of their obligations or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, act of government, or any other cause beyond the control of such Party, provided that such Party gives the other Party written notice thereof promptly and, in any event, within fifteen (15) days of discovery thereof, and uses its commercially reasonable efforts to cure any such breach.
14.6 Entire Agreement: This Agreement and its exhibits, schedules, and attachments constitute the entire understanding between the Parties with respect to the subject matter hereof and supersede all prior written or oral representations with respect to the subject matter hereof. This Agreement may not be modified, amended, or otherwise changed in any manner except by a written instrument executed by the Party against whom enforcement is sought.
14.7 Cumulative Remedies: Except as expressly provided in this Agreement, (a) remedies for breach are cumulative and may be exercised separately or concurrently, (b) the exercise of one remedy is not an election of that remedy to the exclusion of others, and (c) the provision for any remedy in this Agreement shall not affect remedies otherwise available at Law or in equity.
14.8 No Third Party Beneficiaries: The Parties do not intend that this Agreement creates any right or cause of action in or on behalf of any Person other than Evolent and ABCO.
14.9 Headings: Section headings have been included in this Agreement merely for convenience of reference. They are not to be considered part of, or to be used in interpreting this Agreement.
14.10 Binding Effect: The covenants and conditions contained herein will apply to and bind the successors, representatives, and permitted assigns of the Parties.
14.11 Expenses: Each Party shall be responsible for its own legal, accounting and other transaction costs relating to the transactions contemplated in this Agreement.
14.12 Notices: All notices required to be given hereunder shall be in writing and given hereunder, as elected by the Party giving notice, as follows: (a) by personal delivery, (b) sent by overnight courier with confirmation of receipt, or (c) dispatched by certified or registered mail, return receipt requested, postage prepaid, addressed to the Parties as follows.
If to Evolent: Evolent, Inc.
800 N. Glebe Road, Suite 500
Arlington, VA 22203
Attention: President
Morgan Lewis & Bockius, LLP
225 Franklin Street
Boston, MA 02110
Attention: Mark B. Stein, Esq.
Fax No.: (617) 341-7701
If to ABCO: The Advisory Board Company
2445 M St. NW
Washington, DC 20037
Attention: General Counsel
Notice shall be deemed given (a) on the date of receipt if delivered personally; (b) on the business day following delivery of such notice to the overnight courier; or (c) three (3) business days after deposit in the mail in accordance with the foregoing. Either Party may change the address to which to send notices by notifying the other Party of such change of address in writing in accordance with the foregoing.
14.13 Press Releases: No press releases or other public announcements concerning the transactions contemplated by this Agreement shall be made by ABCO or Evolent without the prior written consent of both Parties; provided, however, that nothing herein shall prevent a Party from supplying such information or making statements as required by governmental authority or in order for a Party to satisfy its legal obligations (prompt notice of which shall in any such case be given to the other Party).
14.14 Severability: Any terms or provisions of this Agreement that shall prove to be invalid, void or illegal shall in no way affect, impair, or invalidate any other term or provision herein and such remaining terms and provisions shall remain in full force and effect provided that its general purposes are still reasonably capable of being effected. All such terms or provisions which are determined by a court of competent jurisdiction or other dispute resolution proceeding to be invalid, void or illegal shall be construed and limited so as to allow the maximum effect permissible by Law.
14.15 Waiver: The waiver by either Party to this Agreement of any one or more defaults, if any, on the part of the other, shall not be construed to operate as a waiver of any other or future defaults under the same or different terms, conditions or covenants contained in this Agreement.
IN WITNESS WHEREOF, the Parties have executed this Agreement effective as of the date first written above.
THE ADVISORY BOARD COMPANY EVOLENT HEALTH, INC.
/s/ Evan Farber
By: Evan Farber By:
Its: General Counsel Its:
[Signature Page to Amended and Restated Services, Reseller and Non-Competition Agreement]
IN WITNESS WHEREOF, the Parties have executed this Agreement effective as of the date first written above.
THE ADVISORY BOARD COMPANY EVOLENT HEALTH, INC.
/s/ Frank Williams
By: By: Frank Williams
Its: Its: CEO
| Contradiction |
622_nda-1 | 622_nda-1_0 | Q: All Confidential Information shall be expressly identified by the Disclosing Party.
Text: Exhibit 10.16
AMENDED AND RESTATED
SERVICES, RESELLER AND NON-COMPETITION AGREEMENT
THIS AMENDED AND RESTATED SERVICES, RESELLER AND NON-COMPETITION AGREEMENT (this “Agreement”) is made and entered into effective as of June 27, 2013 (the “Effective Date”) by and between The Advisory Board Company, a Delaware corporation (“ABCO”), and Evolent Health, Inc. (f/k/a VPHealth, Inc.), a Delaware corporation (“Evolent”), (each, a “Party”, and collectively, the “Parties”).
RECITALS
WHEREAS, ABCO and Evolent entered into a Services, Reseller and Non-Competition Agreement (the “Original Agreement”), effective as of August 31, 2011 (the “Original Effective Date”);
WHEREAS, since entering into the Original Agreement, Evolent and ABCO have continued to explore ways to improve the efficiency and implementation of their relationship; and
WHEREAS, as a result of the foregoing efforts, the Parties have agreed to amend and restate the Original Agreement as set forth in this Agreement.
NOW, THEREFORE, in consideration of the above recitals, the terms and conditions hereinafter set forth, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto agree as follows:
1. DEFINITIONS. For purposes of this Agreement:
1.1 “ABCO Restricted Products and Services” means (a) care management services including, but not limited to, traditional disease management services, direct patient outreach and other service-based care management offerings (e.g., readmissions management teams, nurse call centers, on-site care management teams); (b) care management workflow software designed for and used by provider-owned payor organizations or other entities intending to conduct active care management campaigns targeted at managing population health/longitudinal outcomes (i.e, solutions that are the same as or substantially similar to (i.e. functionality that is redundant in substantial and material respects with) HealthPlaNet); (c) services primarily intended to support cost reduction and benefit changes for health system employees; (d) consulting services comparable and competitive with blueprint consulting services offered by Evolent as of the Effective Date (“Blueprint Services”), (e) Exclusive TPA Services or (f) Crimson Care Registry products. For the avoidance of doubt, Restricted Products and Services does not include behavioral health-related services or software (e.g., Askesis Development Group software), services similar to those offered by UPMC WorkPartners (e.g., “Take-a-Healthy-Step” or similar health and wellness programs, occupational medicine, on-site clinic implementation and administration, employee assistance services, absence management or workers’ compensation services), or software or solutions similar to those offered by EBenefits Solutions, LLC.
1.2 “Active Sales Process”, with respect to any Person as of any date on which Evolent proposes to add such Person to the list of Evolent Top Prospects, means such Person (a) is not an Evolent Client as of such date and (b) either (i) has purchased ABCO Restricted Products and Services from ABCO prior to such date or (b) was engaged in active discussions with ABCO about acquiring ABCO Restricted Products and Services (including, but not limited to, a review of the applicable offering of ABCO Restricted Products and Services) as of such date.
1.3 “Affiliate” means any Person which Controls, is Controlled by, or is in common Control with, another Person.
1.4 “Business Plan” has the meaning set forth in that certain Intellectual Property License and Data Access Agreement between the Parties.
1.5 “Change of Control” with respect to any entity means a transaction or series of related transactions in which a Person, or a group of related Persons, acquires from stockholders of the subject entity, the entity’s shares representing more than fifty percent (50%) of the outstanding voting power of such entity.
1.6 “Confidential Information” means any and all technical and non-technical information, whether conveyed verbally, in writing, electronically or by any other means, including, but not limited to, trade secrets, source code, technology, know-how and proprietary information, techniques, plans or any other information relating to any research project, analysis, work in process, future development, scientific, engineering, marketing or business plans or financial, contractual or personnel matters relating to either Party or its present or future products, services, sales, suppliers, identity of and information relating to customers and prospective customers, customer or prospect list, prospective employees, investors or affiliates or other proprietary information disclosed or otherwise supplied in confidence by either Party to the other, to the extent that such information is provided pursuant to this Agreement by one Party to the other Party and is marked “confidential” or “proprietary” or that should be reasonably understood by the Receiving Party (based on the nature of the information or the context in which the information is disclosed) should be considered confidential. Confidential Information will not include information to the extent that: (a) such information is or becomes publicly available other than through any act or omission of either Party in breach of this Agreement; (b) such information was received by the Receiving Party, other than under an obligation of confidentiality, from a third party who had no obligation of confidentiality to the other Party; (c) such information was in the possession of the Receiving Party at the time of the disclosure or was independently developed by the Receiving Party, as reflected by the Receiving Party’s internal, written and dated documentation; or (d) an applicable regulation, court order or other legal process requires the disclosure of such information, provided that prior to such disclosure the Disclosing Party will give notice to the other Party so that the other Party may take reasonable steps to oppose or limit such disclosure, so that the Disclosing Party does not disclose any more information than necessary to comply with such legal process. The burden of proof that Confidential Information falls into any one of the above exemptions will be borne by the Party claiming such exemption with documentation or other credible evidence.
1.7 “Control” as used with respect to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities, by agreement or otherwise.
1.8 “Evolent Clients” means entities under a current contract with Evolent for an implementation and/or long-term services contract. 1.9 “Evolent Top Prospects” means, as of any date, up to twenty (20) potential Evolent customers in the Evolent sales pipeline identified by Evolent that are not Evolent Clients as of such date, and (a) are engaged in active discussions with Evolent regarding purchasing Evolent products and services and/or (b) are under a current contract with Evolent for Blueprint Services or other services that do not constitute implementation or long-term services; provided, however, that (i) the list of such potential Evolent customers may be updated by Evolent on a quarterly basis, and ABCO shall have the opportunity upon receipt of each such quarterly update to notify Evolent if any of the Persons added to such list are in an Active Sales Process with ABCO and shall therefore be removed from such list, and (ii) no Person shall remain on the list of Evolent Top Prospects for more than (x) twelve (12) consecutive months, in the case of potential Evolent customers without a signed agreement with Evolent, or (y) twenty-four (24) consecutive months, in the case of potential Evolent Clients that signed an agreement for Blueprint Services with Evolent before or within twelve (12) months of being added to the list of Evolent Top Prospects.
1.10 “Exclusive TPA Services” means certain services as set forth on Schedule 1 of the UPMC Reseller Agreement (as in effect on the Effective Date), to the extent that UPMC Health Plan, Inc., a Pennsylvania nonprofit corporation (“UPMC”), has the exclusive right to provide such services to Evolent, for resale by Evolent to its customers.
1.11 “Disclosing Party” means a Party that provides Confidential Information to the other Party, or the other Party’s Affiliates.
1.12 “Governmental Authority” means any federal, state, municipal, local, territorial, or other governmental department, regulatory authority, judicial or administrative body, whether domestic, foreign or international.
1.13 “Law” means all international, federal, country, state, provincial, local and other laws, rules and regulations, declaration, decree, directive, legislative enactment, order, code, ordinance, regulation, rule or other binding restriction of or by any Governmental Authority, as the same are promulgated, supplemented or amended from time to time.
1.14 “Loss” individually, and collectively, “Losses” means all claims, liabilities, obligations, losses, costs, expenses (including, without limitation, legal, accounting and similar expenses), litigation, proceedings, fines, taxes, levies, imposts, duties, deficiencies, assessments, charges, penalties, allegations, demands, damages (including, but not limited to, actual, punitive or consequential, foreseen or unforeseen, known or unknown, fixed or contingent, and matured or unmatured), civil and criminal violations of Law, settlements and judgments of any kind or nature whatsoever.
1.15 “Person” means any individual, corporation, partnership, firm, joint venture, association, limited liability company, limited liability partnership, joint-stock company, trust, joint venture, unincorporated organization, governmental, judicial or regulatory body, business unit, division or any other business entity, organization or Governmental Authority.
1.16 “Receiving Party” means a Party that receives Confidential Information from the other Party or the other Party’s Affiliates.
1.17 “Statement of Work” or “SOW” means an agreement by and between ABCO and Evolent that contains the detailed description of services, scope, specifications, pricing, implementation plan, timetables, milestones, and other terms and conditions for each procurement of services, as applicable.
1.18 “UPMC Reseller Agreement” means that certain Second Amended and Restated Reseller, Services and Non-Competition Agreement between UPMC and Evolent dated as of [the Effective Date].
2. SERVICES TO BE PROVIDED BY ABCO.
2.1 General Services:
2.1.1 Minimum Purchase. The Parties hereby acknowledge and agree that Evolent has purchased from ABCO a minimum of Two Hundred Thousand Dollars ($200,000) of services (as described in Section 2.2.1) (the “Original Minimum Purchase”) for delivery between the Original Effective Date and the first anniversary thereof.
2.1.2 Statements of Work. The specific description, price, service levels (if applicable) and other project, service, and/or customer-specific terms for a particular service that may be provided by ABCO to Evolent (each, a “Service”, and collectively, the “Services”) shall be set forth in a Statement of Work that will be created on a project by project basis.
2.2 Right of First Offer and Process for Invoking:
2.2.1 Applicable Services. Throughout the Term, ABCO shall have the right of first offer to provide the following services to Evolent and Evolent’s customers:
(a) Physician practice management consulting and other physician practice management services;
(b) Physician incentive design services;
(c) Medical home development consulting services; and
(d) Performance analytics shared with physicians with the intent to improve outcomes.
2.2.2 Process for Exercising Right of First Offer. Evolent shall notify ABCO in writing in the event Evolent desires to receive any of the above services (“First Offer Services”). ABCO shall have a period of thirty (30) days (“First Offer Services Evaluation Period”) within which to conduct its evaluation and diligence with respect to providing such First Offer Services. Evolent shall cooperate with ABCO and provide reasonable assistance and information to ABCO to enable ABCO to conduct its evaluation. Within five (5) business days after the expiration of such First Offer Services Evaluation Period, ABCO shall notify Evolent in writing whether or not it wishes to provide such services to Evolent. If ABCO elects to provide such First Offer Services, Evolent agrees to engage in good faith negotiations with ABCO, on an exclusive basis for a period of sixty (60) days, regarding the specific terms covering such First Offer Services.
2.3 Failure to Execute a Service Agreement for the VBC Innovation Center: The Parties acknowledge and agree that it was their intent as of the Original Effective Date to enter into a service agreement under which Evolent would engage ABCO to provide certain consulting, development and support services in connection with the creation, launch, implementation and ongoing support of a Value-Based Care Innovation Center (the “VBC Innovation Center”), in consideration for which Evolent would pay ABCO a fixed fee of Eight Hundred Thousand Dollars ($800,000) per year (“Fixed Fee”) for each of the first two (2) years of the term of such VBC Innovation Center service agreement. The Parties acknowledge and agree that, notwithstanding the fact that they negotiated with diligence and in good faith the specific terms and conditions of such service agreement, the Parties were unable to reach an agreement with respect to the VBC Innovation Center. Accordingly, the Original Minimum Purchase is increased to One Million Two Hundred Thousand Dollars ($1,200,000) (the “Minimum Purchase”) as follows: (a) between the Original Effective Date and the second anniversary thereof, Evolent shall have purchased from ABCO a minimum of Seven Hundred Thousand Dollars ($700,000) of services for delivery on or prior to such second anniversary of the Original Effective Date), and (b) inclusive of the purchases described in clause (a), between the Original Effective Date and the third anniversary thereof, Evolent shall have purchased from ABCO a minimum of One Million Two Hundred Thousand Dollars ($1,200,000) of services for delivery on or prior to such third anniversary of the Original Effective Date); provided that, for purposes of this sentence, “services” shall include consulting, software, professional or analytic services provided from time to time by ABCO to Evolent (other than services in connection with the provision of any office space by or on behalf of ABCO to Evolent) or, pursuant to a joint written proposal by ABCO and Evolent, to any Evolent Client.
2.4 Reservation of Rights: For the avoidance of doubt, Evolent is not precluded from offering and providing services directly to its customers, subject (a) to (i.e., after ABCO has had the full opportunity to exercise) ABCO’s right of first offer to provide any First Offer Services in accordance with Section 2.2) and (b) to Evolent’s compliance with its non-competition obligations as set forth in Section 6.2.
2.5 Designation of Relationship Managers: In order to support the launch and ongoing success of the exclusive reseller relationship between ABCO and Evolent, each Party agrees to designate a senior level individual who will serve as the primary liaison and “go to” contact and relationship manager for such Party (each, a “Relationship Manager”). Each Party’s Relationship Manager’s role and responsibilities would include: (a) facilitating day-to-day communications between the Parties regarding customer-facing activities, such as marketing, promotional and sales activities and preparing and submitting bids, proposals, responses to requests for proposals, fee estimates, Statements of Work and project plans; (b) receiving and submitting requests between the Parties for information and/or assistance; (c) overseeing the efficient knowledge transfer and flow of information between the Parties; (d) facilitating communications between the appropriate individuals within Evolent and ABCO, with respect to product and service offering development; and (e) providing the first level of performance review or escalation in the event of a Dispute as provided in Section 13. The Relationship Managers will meet regularly, but no less frequently than monthly, as reasonably necessary, to maintain a good working relationship between the Parties. Each Party may change its Relationship Manager by giving the other Party reasonable notice as long as the change is implemented in a manner that does not cause any significant disruption to each Party’s business operations and business relationship.
3. FEES; PAYMENT TERMS; SHORTFALL.
3.1 Fees; Timing of Payments: Evolent shall pay ABCO the applicable fees for the Services performed by ABCO pursuant to a Statement of Work, as follows: (a) unless the Parties otherwise agree in writing, a deposit of 50% of the total fees for the particular project shall be paid upon signing of the Statement of Work; (b) ABCO will submit an invoice to Evolent for the balance upon completion of the work; and (c) Evolent shall pay ABCO for such invoiced amount within thirty (30) days after receipt of such invoice.
3.2 Minimum Purchase and Shortfall: Evolent agrees to pay ABCO the Minimum Purchase. If the aggregate amount of Services actually procured by Evolent from ABCO is not equal to or greater than (a) Seven Hundred Thousand Dollars ($700,000) of services for delivery on or prior to the second anniversary of the Original Effective Date or (b) inclusive of the purchase described in clause (a), the Minimum Purchase of services for delivery on or prior to the third anniversary of the Original Effective Date, Evolent shall pay ABCO the amount of the shortfall (i.e., the difference between Seven Hundred Thousand Dollars ($700,000) or the Minimum Purchase amount, as applicable, less the sum of: (a) the aggregate fees for the actual amount of Services procured; and (b) any Credits (as provided in the next sentence) (the “Shortfall”), if any, on or before August 31, 2013 or August 31, 2014, as applicable. In the event that ABCO refuses or fails, without reasonable cause, to provide any of the Services requested by Evolent (provided the scope of the Services requested is within the scope customarily provided by ABCO), the fees that would otherwise have been applicable had ABCO agreed to provide such Services would count as a “Credit”. As of the date hereof, no such Credits have accrued.
4. TERM AND RENEWAL. The initial term of this Agreement shall commence on the Effective Date and unless sooner terminated in accordance with the terms hereof, shall continue until August 31, 2016 (“Initial Term”). Thereafter, this Agreement shall automatically be renewed for another five-year term (“Renewal Term”) unless either Party elects to terminate this Agreement by providing the other Party with written notice of termination one hundred eighty (180) days prior to the expiration of the current term. (“Initial Term” and “Renewal Term” collectively, the “Term”).
5. REFERRAL FEES, SOLICITATION AND COMPETITION AND POST-CLOSING SERVICES.
5.1 Referral Fees:
5.1.1 During the Term, ABCO will pay Evolent a sales referral fee for any sale made by ABCO that resulted from a “net” new sale from a new customer that was not already in ABCO’s sales pipeline (i.e., a “warm lead”) or a then-current customer of ABCO generated directly by Evolent’s efforts and without any assistance from any ABCO employee or representative (including any Evolent employee that serves on the Board of Directors of ABCO), equal to 5% of the total ABCO revenue from the new customer during the initial twelve (12) months of services under the services agreement with such new customer.
5.1.2 During the Term, Evolent will pay ABCO a sales referral fee for any sale made by Evolent that resulted from a “net” new sale from a new customer that was not already in Evolent’s sales pipeline (i.e., a “warm lead”) or a then-current customer of Evolent generated directly by ABCO’s efforts and without any assistance from any Evolent employee or representative (including any ABCO employee that serves on the Board of Directors of Evolent), in accordance with the following terms:
(a) ABCO will receive a one-time referral fee for any “employee health” diagnostic, consulting or broker services provided by Evolent to a Covered Health System, equal to the lesser of $20,000 or 5% of the total Evolent revenue from the Covered Health System during the initial twelve (12) months of services under the service agreement with such Covered Health System.
(b) ABCO will receive $50,000 per year for three (3) years for each health system joining Evolent as an Employee Health Platform Customer. An “Employee Health Platform Customer” is defined as a health system purchasing diagnostic/consulting services and ongoing medical management/health plan services (i.e., care management, HealthPlaNet care management application, and the TPA platform, etc.).
(c) ABCO will receive $100,000 per year for three (3) years for a health system joining Evolent as a Platform Health Plan Customer. A “Platform Health Plan Customer” is defined as a health system purchasing ongoing medical management services, ongoing health plan outsourcing services (i.e., TPA) and health plan management services for purposes of a licensed insurance entity with at least fifty thousand (50,000) lives (beyond the employee population).
(d) With the exception of making the introduction (either through an email or an in-person meeting) (to generate the “warm lead”), ABCO would not be expected to perform any actual duties or incur actual cost to receive a referral fee.
(e) The annual referral fees for each referral would be capped at the lesser of (x) 5% of annual revenue generated by Evolent for the respective customer and (y) the $50,000 or $100,000 figures described above, as applicable.
6. SOLICITATION AND COMPETITION.
6.1 Scope:
6.1.1 Throughout the Term, ABCO agrees not to offer any ABCO Restricted Products and Services to (a) any Evolent Clients or (b) any Evolent Top Prospects; provided, however, that ABCO shall not be restricted from making any such offer to any Evolent Top Prospect or Evolent Client with whom ABCO was, at the time such Person was identified as an Evolent Top Prospect or became an Evolent Client, engaged in an Active Sales Process. The foregoing restrictions shall not apply in the event of a Change of Control of Evolent or in the event that ABCO ceases to be a shareholder of Evolent.
6.1.2 None of the foregoing would prohibit ABCO from:
(a) Marketing, offering, licensing or selling versions of any of its Crimson Population Risk Management products, or the successors to any such products, provided that such products, or the successors to any such products, are not the same as or substantially similar to (i.e., includes functionality that is redundant in substantial and material respects with) HealthPlaNet as it exists as of the Effective Date.
(b) Supporting employers with care management related best practices and research.
(c) Offering traditional “dedicated advisor” support in conjunction with ABCO’s traditional business intelligence offerings.
(d) Marketing, offering, licensing or selling its employer health product.
(e) Providing physician management consulting and other physician management services.
6.2 Restrictions Relating to Certain ABCO Products and Services: Evolent shall not, until the earlier of (x) ABCO’s ceasing to be a shareholder of Evolent or (y) the seventh (7 ) anniversary of the date of this Agreement, promote, market, provide, offer or sellth (a) unbundled software applications, software tools or other similar technologies (including, without limitation, software as a service, analytics technology or data services) (each, a “Technology Solution”), (b) consulting services that are not intended to lead to or be a part of a Blueprint Services engagement, implementation contract and/or long-term services contract, or (c) any best practices membership programs or unbundled or bundled physician practice management and other physician practice management consulting services, in each case referred to in this clause (c) that are substantially similar to, or that are competitive with, ABCO’s best practices membership programs or physician practice management or other physician practice management consulting services that are offered by ABCO as of the date first written above. For the avoidance of doubt, “unbundled” means on a stand-alone basis, instead of “bundled”, which contemplates that the Technology Solution is both (i) offered as part of a “packaged”, integrated offering, in conjunction with other Evolent products or services that are not Technology Solutions (and not only services that constitute customary software, data and end user support-related services), such as the Exclusive TPA Services, and (ii) incidental to the provision of such other Evolent products or services. Notwithstanding any other provision hereof, the foregoing restrictions in this Section 6.2 shall survive a Change of Control of Evolent for seven (7) years from the date of this Agreement; provided, however, that prior to the seventh (7 ) anniversary of the date of thisth Agreement, the acquiring party in a Change of Control of Evolent shall be not be subject to the foregoing restrictions with respect to any Technology Solutions or consulting services, in each case, that are unrelated to the Evolent assets acquired.
6.3 Non-Solicitation or Hiring: During the Term and for a period of eighteen (18) months thereafter, Evolent shall not solicit or hire any of ABCO’s employees without ABCO’s prior written consent.
7. EXCLUSIVE RESELLER RIGHTS FOR FUTURE PRODUCTS.
In the event that Evolent creates a discrete or segregable product or service that can be sold to healthcare providers, Evolent shall notify ABCO in writing of such new offerings (“New Products”). ABCO shall have a period of ninety (90) days (“New Products Evaluation Period”) within which to conduct its evaluation and diligence with respect to providing such New Products. Evolent shall cooperate with ABCO and provide reasonable assistance and information to ABCO to enable ABCO to conduct its evaluation. Within five (5) business days after the expiration of such New Products Evaluation Period, ABCO shall notify Evolent in writing whether or not it wishes to have the right to resell such New Products. If ABCO elects to resell such New Products, Evolent and ABCO agree to negotiate in good faith on an exclusive basis for one hundred twenty (120) days the terms of a reseller agreement, under which ABCO would be the exclusive distributor (in addition to Evolent) of such New Products.
8. CONFIDENTIALITY.
8.1 Confidential Information: ABCO acknowledges that in connection with its rights and obligations under this Agreement it may gain access to the Confidential Information of Evolent and its customers and Affiliates. Evolent acknowledges that in connection with its rights and obligations under this Agreement, it may gain access to the Confidential Information of ABCO and its customers and Affiliates.
8.2 Non-Disclosure: The Receiving Party may disclose the Disclosing Party’s Confidential Information strictly on a need-to-know basis to only those personnel, including employees of the Receiving Party’s contractors, who require access to the Disclosing Party’s Confidential Information in order to perform or derive benefit from the Services or otherwise meet its obligations under this Agreement. The Receiving Party agrees: (a) to hold the Disclosing Party’s Confidential Information in strict confidence, using the same degree (but no less than a reasonable degree) of care and protection that it exercises with its own Confidential Information of a similar nature; (b) not to directly or indirectly disclose or otherwise make available any Confidential Information of the Disclosing Party to a third party; and (c) not to copy or use the Disclosing Party’s Confidential Information for any purpose other than as necessary to fulfill the Receiving Party’s obligations or exercise its rights under this Agreement. Each Receiving Party is responsible for ensuring that its employees, agents and contractors strictly abide by the requirements of confidentiality and restrictions on use as provided in this Section 8.2 and shall be liable to the Disclosing Party for any acts or omissions of its employees, agents and independent contractors relating to the Disclosing Party’s Confidential Information. The Receiving Party is allowed to disclose Confidential Information of the Disclosing Party to the extent required by Law or by the order or a court of similar judicial or administrative body with jurisdiction, provided that the Receiving Party notifies the Disclosing Party of such required disclosure promptly and in writing and cooperates with the Disclosing Party, at the Disclosing Party’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure. The provisions of this Section 8 shall survive beyond the expiration or termination of this Agreement.
8.3 Injunctive Relief: The Parties acknowledge and agree that monetary damages may be inadequate to compensate for a breach of the provisions contained in this Section 8 or other confidentiality provisions of this Agreement. In the event of such breach, the injured Party shall be entitled to seek injunctive relief (without the need to post bond) and any and all other remedies available at Law or in equity. This Section 8.3 in no way limits the liability or damages that may be assessed against a Party in the event of a breach by the other Party of any of the provisions of this Section 8.
8.4 Residuals: Notwithstanding anything in this Section 8 to the contrary, subject to any applicable statutory intellectual property rights applicable to patents, trademarks or copyrights, either Party may use “Residuals” for any purpose, including without limitation, for use in development, manufacture, promotion, sale and maintenance of its products and services; provided, however, that this right to Residuals does not represent a license under any patents, copyrights or trademarks of the Disclosing Party. The term “Residuals” means any information that is retained in the unaided memories of the Receiving Party’s employees who have had access to the Disclosing Party’s Confidential Information pursuant to the terms of this Agreement.
9. WARRANTIES.
9.1 Authority/No Conflict: ABCO represents and warrants that (a) it has the power and authority to enter into and perform its obligations under this Agreement without conflict with, default under, or violation of any Law, regulation, or agreement binding upon it, and (b) this Agreement has been duly authorized by all necessary organizational action, and duly and validly executed and delivered by it, and constitutes its legally valid and binding obligation, enforceable in accordance with its terms.
9.2 Services: ABCO represents, warrants and covenants that the Services provided under this Agreement will be performed in a professional and workmanlike manner.
9.3 Compliance with Laws/Approvals: Each of ABCO and Evolent shall comply in all material respects with all Laws and regulations applicable to ABCO or Evolent, as applicable, in performing its obligations under this Agreement. To the extent applicable, ABCO shall be responsible for obtaining all necessary permits, licenses, and consents, including governmental approvals, required of ABCO and its contractors in connection with the performance of its obligations under this Agreement, and Evolent shall be responsible for obtaining all necessary permits, licenses, and consents, including governmental approvals, required of Evolent and its contractors in connection with the performance of its obligations under this Agreement.
9.4 Limitations of Warranty: EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, ABCO MAKES NO OTHER WARRANTY OR REPRESENTATION, ORAL, WRITTEN, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE SERVICES, INCLUDING WITHOUT LIMITATION, THEIR QUALITY, PERFORMANCE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, UNINTERRUPTED OR ERROR-FREE OPERATION OR OTHERWISE HEREUNDER. The disclaimer of warranties and limitations set forth in this Agreement constitute an essential part of this Agreement.
10. INDEMNIFICATION.
10.1 IP Indemnification: ABCO shall defend, indemnify and hold harmless Evolent and its Affiliates (other than ABCO), customers, and their respective officers, directors and employees from and against any Losses resulting from a claim that the Services provided by ABCO under this Agreement infringes or misappropriates a third party’s intellectual property rights. ABCO shall also use commercially reasonable efforts to modify the allegedly infringing Services to make it non-infringing, procure a license from the third party claiming infringement to permit Evolent to continue to use the Services, or provide Evolent with functionally equivalent and non-infringing Services. THIS SECTION 10.1 SETS FORTH ABCO’S SOLE AND EXCLUSIVE LIABILITY, AND EVOLENT’S SOLE AND EXCLUSIVE REMEDY, FOR ALLEGATIONS OR CLAIMS OF INFRINGEMENT OF THIRD PARTY RIGHTS OF ANY KIND ASSERTED AGAINST EVOLENT, ITS AFFILIATES (OTHER THAN ABCO), CUSTOMERS AND THEIR RESPECTIVE OFFICERS, DIRECTORS AND EMPLOYEES. ABCO shall not be obligated to indemnify Evolent, its Affiliates, customers, and their respective officers, directors and employees for infringement or misappropriation claims to the extent such claims arise out of use by Evolent or its customers of any of the Services in a manner other than as contemplated by the Parties under this Agreement.
10.2 ABCO’s Indemnification: ABCO hereby agrees to indemnify, defend, and hold Evolent and its Affiliates (other than ABCO), and all of their respective directors, officers, members, managers, partners, employees, agents, successors and assigns, harmless from and against any Losses arising from or related to: (a) the material breach of this Agreement, including any or all SOWs, by ABCO or its personnel (including contractors); (b) breach of any of ABCO’s representations, warranties, and covenants in this Agreement; or (c) negligence or willful misconduct by ABCO or its personnel (including contractors).
10.3 Evolent’s Indemnification: Evolent hereby agrees to indemnify, defend, and hold ABCO and its Affiliates (other than Evolent), and all of their respective directors, officers, members, managers, partners, employees, agents, successors and assigns, harmless from and against any Losses arising from or related to: (a) the material breach of this Agreement, including any or all SOWS, by Evolent or its personnel (including contractors); (b) breach of any of Evolent’s representations, warranties and covenants in this Agreement; or (c) negligence or willful misconduct by Evolent or its personnel (including contractors).
10.4 Indemnification Procedure:
10.4.1 Notice of Claim. Any Party seeking indemnification hereunder (the “Indemnitee”) shall notify the Party liable for such indemnification (the “Indemnitor”) in writing of any event, omission or occurrence that the Indemnitee has determined has given or could give rise to Losses that are indemnifiable hereunder (such written notice being hereinafter referred to as a “Notice of Claims”). Such Notice of Claims shall be given promptly after the Indemnitee becomes aware of its own claim or that of a third party; provided that the failure of any Indemnitee to give notice as provided in this Section 10.4.1 shall not relieve the Indemnitor of its obligations under this Section 10. A Notice of Claims shall specify in reasonable detail the nature and any particulars of the event, omission, or occurrence giving rise to a right of indemnification. The Indemnitor shall satisfy its obligations hereunder, as the case may be, within thirty (30) days of its receipt of a Notice of Claims.
10.4.2 Process. With respect to any third party claim, demand, suit, action, or proceeding that is the subject of a Notice of Claim, the Indemnitor shall, in good faith and at its own expense, defend, contest, or otherwise protect against any such claim, demand, suit, action, or proceeding with legal counsel of its own selection (and reasonably acceptable to the Indemnitee). The Indemnitee shall have the right, but not the obligation, to participate, at its own expense, in the defense thereof through counsel of its own choice and shall have the right, but not the obligation, to assert any and all cross claims or counterclaims it may have. So long as the Indemnitor is defending in good faith any such third party claim, demand, suit, action or proceeding, the Indemnitee shall at all times cooperate, at its own expense, in all reasonable ways with, make its relevant files and records available for inspection and copying by, and make its employees available or otherwise render reasonable assistance to, the Indemnitor. In the event that the Indemnitor fails to timely defend, contest or otherwise protect against any such third party claim, demand, suit, action, or proceeding, the Indemnitee shall have the right, but not the obligation, to defend, contest, assert cross claims or counterclaims, or otherwise protect against, the same and may make any compromise or settlement thereof and be entitled to all amounts paid as a result of such third party claim, demand, suit, or action or any compromise or settlement thereof. The Indemnitor will not consent to the entry of any judgment or enter into any settlement with respect to any such third party claim, demand, suit, action or proceeding without the prior written consent of the Indemnitee, which will not be unreasonably withheld, and provided that no settlement shall require the Indemnitee to admit liability, or perform or become subject to additional obligations thereunder.
11. LIMITS OF LIABILITY. EXCEPT WITH RESPECT TO OR BREACH BY EITHER PARTY OF THE OTHER PARTY’S CONFIDENTIAL INFORMATION UNDER SECTION 8,
NEITHER EVOLENT NOR ABCO SHALL BE LIABLE FOR, NOR WILL THE MEASURE OF DAMAGES INCLUDE, ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OR AMOUNTS INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF INCOME, PROFITS, OR SAVINGS, LOSS OF DATA, OR COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES, ARISING OUT OF OR RELATING TO ITS PERFORMANCE UNDER THIS AGREEMENT UNDER ANY CAUSE OF ACTION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL EITHER PARTY’S LIABILITY EXCEED THE AMOUNT OF REVENUE ACTUALLY RECEIVED BY ABCO IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO THE CLAIM.
12. TERMINATION.
12.1 Termination for Cause: Either Party shall have the right to terminate this Agreement in the event the other Party materially violates a material provision of this Agreement and such violation is not cured or cannot be cured within thirty (30) days after written notice of such material violation.
12.2 Survival: The rights and obligations contained in Sections 1, 5 (with respect to Evolent’s payment obligations that may extend beyond the Term), 6.2, 6.3, 8, 9.4, 10, 11, 12.2, 13 and 14 shall survive any termination or expiration of this Agreement.
13. ESCALATION; DISPUTE RESOLUTION. Subject to the terms of Section 13.5, the procedures of this Section 13 will control the resolution of any and all disputes between the Parties including, without limitation, any dispute relating to disputed monies owing or breach of warranty (each, a “Dispute”). The Parties will seek to resolve each Dispute as follows:
13.1 First Level Performance Review: Each Party’s Relationship Manager will meet as often as will reasonably be required by either Party to review the performance of either Party under this Agreement and to resolve the Dispute. If these representatives are unable to resolve the Dispute within ten (10) business days after the initial request for a meeting, then the Parties will submit the Dispute to an executive level performance review as provided in Section 13.2 below.
13.2 Executive Level Performance Review: Face-to-face negotiations will be conducted by a senior executive officer of each Party (or such other executive as a Party may designate). If these representatives are unable to resolve the Dispute within five (5) business days after the Parties have commenced negotiations or ten (10) business days have passed since the initial request for a meeting at this level, then the Parties may jointly engage the services of a third-party mediator.
13.3 Arbitration: If the Parties are unable to resolve the Dispute through the alternative mechanisms described above, the Parties shall submit the Dispute for resolution through binding arbitration, except as otherwise provided in Section 13.5. The Parties agree and consent to such arbitration proceeding taking place in Wilmington, Delaware, and in accordance with the Commercial Arbitration Rules of the American Arbitration Association, except that discovery may be had in accordance with the Federal Rules of Civil Procedure. The Parties shall be permitted at least six (6) months from the date of the filing of the Arbitration Demand to conduct discovery. The arbitration proceedings shall be conducted by a panel of three (3) impartial arbitrators, with each Party selecting one (1) of the impartial arbitrators and those two (2) arbitrators then selecting the third impartial arbitrator, all such selections to be made through the procedures of the American Arbitration Association. At least one (1) arbitrator must be an attorney licensed under the Laws of Pennsylvania and at least one (1) arbitrator (may be the same Person as the Pennsylvania attorney) must have direct and substantial experience in the industry pertinent to the subject matter of the Dispute. Judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof; provided, however, in rendering its decision, the arbitrators shall be bound by the Laws of the Commonwealth of Pennsylvania (without regard to its conflicts of laws provisions) and by the terms and conditions of this Agreement setting forth the rights and responsibilities of the Parties. The decision of the arbitration panel shall be accompanied by a written opinion setting forth the factual and legal bases for the award. The arbitrators shall issue such written decision within thirty (30) days of the conclusion of the arbitration hearing. The arbitrators appointed hereunder shall not have the power to award punitive damages. Service of a petition to confirm the arbitration award may be made by United States mail, postage prepaid, or by any regularly conducted commercial express mail service, to the attorney for the Party or, if not so represented, to the Party at the address set forth herein, or to the Party’s last known business address. The prevailing Party in any action related to or arising under this Agreement shall be entitled to reasonable attorneys’ fees and costs.
13.3.1 For any Dispute in which the amount in controversy is at least One Million Dollars ($1,000,000), the following additional procedures apply:
(a) a certified court reporter shall transcribe the arbitration hearings; The Parties initially split the cost of the reporter, but such costs shall ultimately be awarded to the Party prevailing in the arbitration proceeding; and
(b) either Party may take an appeal from the final decision by making a written demand within twenty (20) days of the award.
13.3.2 Any such appeal shall be conducted as follows:
(a) such appeals are limited to issues of Law (i.e., the original award (1) contains material errors of Law such that the original award is not founded on any appropriate legal basis; (2) is based on factual findings clearly unsupported by the record; or (3) is subject to one or more grounds set forth in Section 10 of the Federal Arbitration Act or 42 Pa. C.S.A. §7341 for vacating an award);
(b) the Person hearing the appeal shall be a former federal judge mutually agreed to by the Parties or selected through the procedures of the American Arbitration Association. The former judge shall act as the appellate arbitrator;
(c) the submissions on appeal are limited to (1) the record of the arbitration, (2) a 30-page brief by the appellant, (3) a 30-page brief by the appellee and (4) a 10-page response by the appellant. The appellate arbitrator will set the dates for submission of the briefs. Oral argument may be heard at the discretion of the appellate arbitrator;
(d) the appellate arbitrator shall render a written decision within sixty (60) days of the final submission;
(e) during the pendency of the arbitration appeal, the Parties agree to suspend any running of the time to seek enforcement of the original award. The Parties also agree to waive any appeal to state or federal courts based on the grounds set forth in Section 10 of the Federal Arbitration Act for vacating an award and 42 Pa. C.S.A. § 7341;
(f) the appellate arbitrator must award costs and attorneys’ fees to the prevailing Party; and
(g) the decision of the appellate arbitrator shall be final.
13.4 Continued Performance: Each Party acknowledges that the timely and complete performance of its obligations pursuant to this Agreement is critical to the business and operations of the other Party. Accordingly, in the event of a Dispute, each Party shall continue to so perform all of its obligations under this Agreement, in good faith during the resolution of such Dispute unless and until (a) authority to stop doing so is granted or conferred by a court of competent jurisdiction or (b) this Agreement is terminated in accordance with the provisions hereof.
13.5 Equitable Relief: Notwithstanding anything contained in this Agreement to the contrary, the Parties will be entitled to seek injunctive relief, specific performance or other equitable relief whenever the facts or circumstances would permit a Party to seek equitable relief in a court of competent jurisdiction. Without limiting the generality of the foregoing, (a) Evolent agrees that there would be irreparable harm to ABCO in the event of any such breach by Evolent of Section 6.2 and ABCO shall be entitled to (i) injunctive relief to prevent breaches of Section 6.2, (ii) specific performance of this Agreement, and (iii) any other remedies provided by Law or equity, including without limitation an award for damages, and (b) ABCO agrees that there would be irreparable harm to Evolent in the event of any such breach by ABCO of Section 6.1.1, and Evolent shall be entitled to (i) injunctive relief to prevent breaches of Section 6.1.1, (ii) specific performance of this Agreement, and (iii) any other remedies provided by Law or equity, including without limitation an award for damages.
14. MISCELLANEOUS PROVISIONS.
14.1 Good Faith and Mutual Agreement: Unless otherwise expressly stated in such provision, if a provision in this Agreement calls for the consent of a Party or the mutual agreement of the Parties, the Parties agree that each will act in good faith, will not unreasonably withhold their consent and that deference shall be given to the other Party’s reasonable business requirements, and the requirements of the Parties’ respective regulators and internal controls procedures.
14.2 Independent Contractor: The relationship of ABCO to Evolent shall at all times be that of an independent contractor. Nothing in this Agreement shall be construed to create any partnership, association, joint venture, or employment between the Parties. Each Party shall have the sole and exclusive control over the labor and employee relations policies and policies relating to wages, hours, working conditions, benefits, or other conditions of its personnel and shall be responsible and liable for the acts and omissions of its employees, agents and contractors.
14.3 Assignability: Evolent has entered into this Agreement because of the expertise of ABCO, and ABCO understands that the obligations of ABCO are personal to ABCO and may not be assigned to any other company, partnership or individual without the express written consent of Evolent; provided, however, that no consent shall be required if an assignment is made in connection with a sale of all or substantially all of ABCO’s assets or stock, or in connection with a merger or Change of Control. Evolent may assign this Agreement (including the licenses granted pursuant to this Agreement) to any Affiliate of Evolent as part of an internal reorganization or in connection with a sale of substantially all of its assets or stock, or in connection with a merger or Change of Control.
14.4 Governing Law and Jurisdiction: This Agreement shall be governed by and construed and enforced in accordance with the Laws of the Commonwealth of Pennsylvania, without regard to that state or any other state’s conflicts of law rules. Each Party irrevocably consents to the personal jurisdiction of the state and federal courts located in Wilmington, Delaware for any suit or action arising from or related to this Agreement.
14.5 Force Majeure: Neither Party shall be deemed in default of this Agreement to the extent that performance of their obligations or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, act of government, or any other cause beyond the control of such Party, provided that such Party gives the other Party written notice thereof promptly and, in any event, within fifteen (15) days of discovery thereof, and uses its commercially reasonable efforts to cure any such breach.
14.6 Entire Agreement: This Agreement and its exhibits, schedules, and attachments constitute the entire understanding between the Parties with respect to the subject matter hereof and supersede all prior written or oral representations with respect to the subject matter hereof. This Agreement may not be modified, amended, or otherwise changed in any manner except by a written instrument executed by the Party against whom enforcement is sought.
14.7 Cumulative Remedies: Except as expressly provided in this Agreement, (a) remedies for breach are cumulative and may be exercised separately or concurrently, (b) the exercise of one remedy is not an election of that remedy to the exclusion of others, and (c) the provision for any remedy in this Agreement shall not affect remedies otherwise available at Law or in equity.
14.8 No Third Party Beneficiaries: The Parties do not intend that this Agreement creates any right or cause of action in or on behalf of any Person other than Evolent and ABCO.
14.9 Headings: Section headings have been included in this Agreement merely for convenience of reference. They are not to be considered part of, or to be used in interpreting this Agreement.
14.10 Binding Effect: The covenants and conditions contained herein will apply to and bind the successors, representatives, and permitted assigns of the Parties.
14.11 Expenses: Each Party shall be responsible for its own legal, accounting and other transaction costs relating to the transactions contemplated in this Agreement.
14.12 Notices: All notices required to be given hereunder shall be in writing and given hereunder, as elected by the Party giving notice, as follows: (a) by personal delivery, (b) sent by overnight courier with confirmation of receipt, or (c) dispatched by certified or registered mail, return receipt requested, postage prepaid, addressed to the Parties as follows.
If to Evolent: Evolent, Inc.
800 N. Glebe Road, Suite 500
Arlington, VA 22203
Attention: President
Morgan Lewis & Bockius, LLP
225 Franklin Street
Boston, MA 02110
Attention: Mark B. Stein, Esq.
Fax No.: (617) 341-7701
If to ABCO: The Advisory Board Company
2445 M St. NW
Washington, DC 20037
Attention: General Counsel
Notice shall be deemed given (a) on the date of receipt if delivered personally; (b) on the business day following delivery of such notice to the overnight courier; or (c) three (3) business days after deposit in the mail in accordance with the foregoing. Either Party may change the address to which to send notices by notifying the other Party of such change of address in writing in accordance with the foregoing.
14.13 Press Releases: No press releases or other public announcements concerning the transactions contemplated by this Agreement shall be made by ABCO or Evolent without the prior written consent of both Parties; provided, however, that nothing herein shall prevent a Party from supplying such information or making statements as required by governmental authority or in order for a Party to satisfy its legal obligations (prompt notice of which shall in any such case be given to the other Party).
14.14 Severability: Any terms or provisions of this Agreement that shall prove to be invalid, void or illegal shall in no way affect, impair, or invalidate any other term or provision herein and such remaining terms and provisions shall remain in full force and effect provided that its general purposes are still reasonably capable of being effected. All such terms or provisions which are determined by a court of competent jurisdiction or other dispute resolution proceeding to be invalid, void or illegal shall be construed and limited so as to allow the maximum effect permissible by Law.
14.15 Waiver: The waiver by either Party to this Agreement of any one or more defaults, if any, on the part of the other, shall not be construed to operate as a waiver of any other or future defaults under the same or different terms, conditions or covenants contained in this Agreement.
IN WITNESS WHEREOF, the Parties have executed this Agreement effective as of the date first written above.
THE ADVISORY BOARD COMPANY EVOLENT HEALTH, INC.
/s/ Evan Farber
By: Evan Farber By:
Its: General Counsel Its:
[Signature Page to Amended and Restated Services, Reseller and Non-Competition Agreement]
IN WITNESS WHEREOF, the Parties have executed this Agreement effective as of the date first written above.
THE ADVISORY BOARD COMPANY EVOLENT HEALTH, INC.
/s/ Frank Williams
By: By: Frank Williams
Its: Its: CEO
| Contradiction |
622_nda-19 | 622_nda-19_0 | Q: Some obligations of Agreement may survive termination of Agreement.
Text: Exhibit 10.16
AMENDED AND RESTATED
SERVICES, RESELLER AND NON-COMPETITION AGREEMENT
THIS AMENDED AND RESTATED SERVICES, RESELLER AND NON-COMPETITION AGREEMENT (this “Agreement”) is made and entered into effective as of June 27, 2013 (the “Effective Date”) by and between The Advisory Board Company, a Delaware corporation (“ABCO”), and Evolent Health, Inc. (f/k/a VPHealth, Inc.), a Delaware corporation (“Evolent”), (each, a “Party”, and collectively, the “Parties”).
RECITALS
WHEREAS, ABCO and Evolent entered into a Services, Reseller and Non-Competition Agreement (the “Original Agreement”), effective as of August 31, 2011 (the “Original Effective Date”);
WHEREAS, since entering into the Original Agreement, Evolent and ABCO have continued to explore ways to improve the efficiency and implementation of their relationship; and
WHEREAS, as a result of the foregoing efforts, the Parties have agreed to amend and restate the Original Agreement as set forth in this Agreement.
NOW, THEREFORE, in consideration of the above recitals, the terms and conditions hereinafter set forth, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto agree as follows:
1. DEFINITIONS. For purposes of this Agreement:
1.1 “ABCO Restricted Products and Services” means (a) care management services including, but not limited to, traditional disease management services, direct patient outreach and other service-based care management offerings (e.g., readmissions management teams, nurse call centers, on-site care management teams); (b) care management workflow software designed for and used by provider-owned payor organizations or other entities intending to conduct active care management campaigns targeted at managing population health/longitudinal outcomes (i.e, solutions that are the same as or substantially similar to (i.e. functionality that is redundant in substantial and material respects with) HealthPlaNet); (c) services primarily intended to support cost reduction and benefit changes for health system employees; (d) consulting services comparable and competitive with blueprint consulting services offered by Evolent as of the Effective Date (“Blueprint Services”), (e) Exclusive TPA Services or (f) Crimson Care Registry products. For the avoidance of doubt, Restricted Products and Services does not include behavioral health-related services or software (e.g., Askesis Development Group software), services similar to those offered by UPMC WorkPartners (e.g., “Take-a-Healthy-Step” or similar health and wellness programs, occupational medicine, on-site clinic implementation and administration, employee assistance services, absence management or workers’ compensation services), or software or solutions similar to those offered by EBenefits Solutions, LLC.
1.2 “Active Sales Process”, with respect to any Person as of any date on which Evolent proposes to add such Person to the list of Evolent Top Prospects, means such Person (a) is not an Evolent Client as of such date and (b) either (i) has purchased ABCO Restricted Products and Services from ABCO prior to such date or (b) was engaged in active discussions with ABCO about acquiring ABCO Restricted Products and Services (including, but not limited to, a review of the applicable offering of ABCO Restricted Products and Services) as of such date.
1.3 “Affiliate” means any Person which Controls, is Controlled by, or is in common Control with, another Person.
1.4 “Business Plan” has the meaning set forth in that certain Intellectual Property License and Data Access Agreement between the Parties.
1.5 “Change of Control” with respect to any entity means a transaction or series of related transactions in which a Person, or a group of related Persons, acquires from stockholders of the subject entity, the entity’s shares representing more than fifty percent (50%) of the outstanding voting power of such entity.
1.6 “Confidential Information” means any and all technical and non-technical information, whether conveyed verbally, in writing, electronically or by any other means, including, but not limited to, trade secrets, source code, technology, know-how and proprietary information, techniques, plans or any other information relating to any research project, analysis, work in process, future development, scientific, engineering, marketing or business plans or financial, contractual or personnel matters relating to either Party or its present or future products, services, sales, suppliers, identity of and information relating to customers and prospective customers, customer or prospect list, prospective employees, investors or affiliates or other proprietary information disclosed or otherwise supplied in confidence by either Party to the other, to the extent that such information is provided pursuant to this Agreement by one Party to the other Party and is marked “confidential” or “proprietary” or that should be reasonably understood by the Receiving Party (based on the nature of the information or the context in which the information is disclosed) should be considered confidential. Confidential Information will not include information to the extent that: (a) such information is or becomes publicly available other than through any act or omission of either Party in breach of this Agreement; (b) such information was received by the Receiving Party, other than under an obligation of confidentiality, from a third party who had no obligation of confidentiality to the other Party; (c) such information was in the possession of the Receiving Party at the time of the disclosure or was independently developed by the Receiving Party, as reflected by the Receiving Party’s internal, written and dated documentation; or (d) an applicable regulation, court order or other legal process requires the disclosure of such information, provided that prior to such disclosure the Disclosing Party will give notice to the other Party so that the other Party may take reasonable steps to oppose or limit such disclosure, so that the Disclosing Party does not disclose any more information than necessary to comply with such legal process. The burden of proof that Confidential Information falls into any one of the above exemptions will be borne by the Party claiming such exemption with documentation or other credible evidence.
1.7 “Control” as used with respect to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities, by agreement or otherwise.
1.8 “Evolent Clients” means entities under a current contract with Evolent for an implementation and/or long-term services contract. 1.9 “Evolent Top Prospects” means, as of any date, up to twenty (20) potential Evolent customers in the Evolent sales pipeline identified by Evolent that are not Evolent Clients as of such date, and (a) are engaged in active discussions with Evolent regarding purchasing Evolent products and services and/or (b) are under a current contract with Evolent for Blueprint Services or other services that do not constitute implementation or long-term services; provided, however, that (i) the list of such potential Evolent customers may be updated by Evolent on a quarterly basis, and ABCO shall have the opportunity upon receipt of each such quarterly update to notify Evolent if any of the Persons added to such list are in an Active Sales Process with ABCO and shall therefore be removed from such list, and (ii) no Person shall remain on the list of Evolent Top Prospects for more than (x) twelve (12) consecutive months, in the case of potential Evolent customers without a signed agreement with Evolent, or (y) twenty-four (24) consecutive months, in the case of potential Evolent Clients that signed an agreement for Blueprint Services with Evolent before or within twelve (12) months of being added to the list of Evolent Top Prospects.
1.10 “Exclusive TPA Services” means certain services as set forth on Schedule 1 of the UPMC Reseller Agreement (as in effect on the Effective Date), to the extent that UPMC Health Plan, Inc., a Pennsylvania nonprofit corporation (“UPMC”), has the exclusive right to provide such services to Evolent, for resale by Evolent to its customers.
1.11 “Disclosing Party” means a Party that provides Confidential Information to the other Party, or the other Party’s Affiliates.
1.12 “Governmental Authority” means any federal, state, municipal, local, territorial, or other governmental department, regulatory authority, judicial or administrative body, whether domestic, foreign or international.
1.13 “Law” means all international, federal, country, state, provincial, local and other laws, rules and regulations, declaration, decree, directive, legislative enactment, order, code, ordinance, regulation, rule or other binding restriction of or by any Governmental Authority, as the same are promulgated, supplemented or amended from time to time.
1.14 “Loss” individually, and collectively, “Losses” means all claims, liabilities, obligations, losses, costs, expenses (including, without limitation, legal, accounting and similar expenses), litigation, proceedings, fines, taxes, levies, imposts, duties, deficiencies, assessments, charges, penalties, allegations, demands, damages (including, but not limited to, actual, punitive or consequential, foreseen or unforeseen, known or unknown, fixed or contingent, and matured or unmatured), civil and criminal violations of Law, settlements and judgments of any kind or nature whatsoever.
1.15 “Person” means any individual, corporation, partnership, firm, joint venture, association, limited liability company, limited liability partnership, joint-stock company, trust, joint venture, unincorporated organization, governmental, judicial or regulatory body, business unit, division or any other business entity, organization or Governmental Authority.
1.16 “Receiving Party” means a Party that receives Confidential Information from the other Party or the other Party’s Affiliates.
1.17 “Statement of Work” or “SOW” means an agreement by and between ABCO and Evolent that contains the detailed description of services, scope, specifications, pricing, implementation plan, timetables, milestones, and other terms and conditions for each procurement of services, as applicable.
1.18 “UPMC Reseller Agreement” means that certain Second Amended and Restated Reseller, Services and Non-Competition Agreement between UPMC and Evolent dated as of [the Effective Date].
2. SERVICES TO BE PROVIDED BY ABCO.
2.1 General Services:
2.1.1 Minimum Purchase. The Parties hereby acknowledge and agree that Evolent has purchased from ABCO a minimum of Two Hundred Thousand Dollars ($200,000) of services (as described in Section 2.2.1) (the “Original Minimum Purchase”) for delivery between the Original Effective Date and the first anniversary thereof.
2.1.2 Statements of Work. The specific description, price, service levels (if applicable) and other project, service, and/or customer-specific terms for a particular service that may be provided by ABCO to Evolent (each, a “Service”, and collectively, the “Services”) shall be set forth in a Statement of Work that will be created on a project by project basis.
2.2 Right of First Offer and Process for Invoking:
2.2.1 Applicable Services. Throughout the Term, ABCO shall have the right of first offer to provide the following services to Evolent and Evolent’s customers:
(a) Physician practice management consulting and other physician practice management services;
(b) Physician incentive design services;
(c) Medical home development consulting services; and
(d) Performance analytics shared with physicians with the intent to improve outcomes.
2.2.2 Process for Exercising Right of First Offer. Evolent shall notify ABCO in writing in the event Evolent desires to receive any of the above services (“First Offer Services”). ABCO shall have a period of thirty (30) days (“First Offer Services Evaluation Period”) within which to conduct its evaluation and diligence with respect to providing such First Offer Services. Evolent shall cooperate with ABCO and provide reasonable assistance and information to ABCO to enable ABCO to conduct its evaluation. Within five (5) business days after the expiration of such First Offer Services Evaluation Period, ABCO shall notify Evolent in writing whether or not it wishes to provide such services to Evolent. If ABCO elects to provide such First Offer Services, Evolent agrees to engage in good faith negotiations with ABCO, on an exclusive basis for a period of sixty (60) days, regarding the specific terms covering such First Offer Services.
2.3 Failure to Execute a Service Agreement for the VBC Innovation Center: The Parties acknowledge and agree that it was their intent as of the Original Effective Date to enter into a service agreement under which Evolent would engage ABCO to provide certain consulting, development and support services in connection with the creation, launch, implementation and ongoing support of a Value-Based Care Innovation Center (the “VBC Innovation Center”), in consideration for which Evolent would pay ABCO a fixed fee of Eight Hundred Thousand Dollars ($800,000) per year (“Fixed Fee”) for each of the first two (2) years of the term of such VBC Innovation Center service agreement. The Parties acknowledge and agree that, notwithstanding the fact that they negotiated with diligence and in good faith the specific terms and conditions of such service agreement, the Parties were unable to reach an agreement with respect to the VBC Innovation Center. Accordingly, the Original Minimum Purchase is increased to One Million Two Hundred Thousand Dollars ($1,200,000) (the “Minimum Purchase”) as follows: (a) between the Original Effective Date and the second anniversary thereof, Evolent shall have purchased from ABCO a minimum of Seven Hundred Thousand Dollars ($700,000) of services for delivery on or prior to such second anniversary of the Original Effective Date), and (b) inclusive of the purchases described in clause (a), between the Original Effective Date and the third anniversary thereof, Evolent shall have purchased from ABCO a minimum of One Million Two Hundred Thousand Dollars ($1,200,000) of services for delivery on or prior to such third anniversary of the Original Effective Date); provided that, for purposes of this sentence, “services” shall include consulting, software, professional or analytic services provided from time to time by ABCO to Evolent (other than services in connection with the provision of any office space by or on behalf of ABCO to Evolent) or, pursuant to a joint written proposal by ABCO and Evolent, to any Evolent Client.
2.4 Reservation of Rights: For the avoidance of doubt, Evolent is not precluded from offering and providing services directly to its customers, subject (a) to (i.e., after ABCO has had the full opportunity to exercise) ABCO’s right of first offer to provide any First Offer Services in accordance with Section 2.2) and (b) to Evolent’s compliance with its non-competition obligations as set forth in Section 6.2.
2.5 Designation of Relationship Managers: In order to support the launch and ongoing success of the exclusive reseller relationship between ABCO and Evolent, each Party agrees to designate a senior level individual who will serve as the primary liaison and “go to” contact and relationship manager for such Party (each, a “Relationship Manager”). Each Party’s Relationship Manager’s role and responsibilities would include: (a) facilitating day-to-day communications between the Parties regarding customer-facing activities, such as marketing, promotional and sales activities and preparing and submitting bids, proposals, responses to requests for proposals, fee estimates, Statements of Work and project plans; (b) receiving and submitting requests between the Parties for information and/or assistance; (c) overseeing the efficient knowledge transfer and flow of information between the Parties; (d) facilitating communications between the appropriate individuals within Evolent and ABCO, with respect to product and service offering development; and (e) providing the first level of performance review or escalation in the event of a Dispute as provided in Section 13. The Relationship Managers will meet regularly, but no less frequently than monthly, as reasonably necessary, to maintain a good working relationship between the Parties. Each Party may change its Relationship Manager by giving the other Party reasonable notice as long as the change is implemented in a manner that does not cause any significant disruption to each Party’s business operations and business relationship.
3. FEES; PAYMENT TERMS; SHORTFALL.
3.1 Fees; Timing of Payments: Evolent shall pay ABCO the applicable fees for the Services performed by ABCO pursuant to a Statement of Work, as follows: (a) unless the Parties otherwise agree in writing, a deposit of 50% of the total fees for the particular project shall be paid upon signing of the Statement of Work; (b) ABCO will submit an invoice to Evolent for the balance upon completion of the work; and (c) Evolent shall pay ABCO for such invoiced amount within thirty (30) days after receipt of such invoice.
3.2 Minimum Purchase and Shortfall: Evolent agrees to pay ABCO the Minimum Purchase. If the aggregate amount of Services actually procured by Evolent from ABCO is not equal to or greater than (a) Seven Hundred Thousand Dollars ($700,000) of services for delivery on or prior to the second anniversary of the Original Effective Date or (b) inclusive of the purchase described in clause (a), the Minimum Purchase of services for delivery on or prior to the third anniversary of the Original Effective Date, Evolent shall pay ABCO the amount of the shortfall (i.e., the difference between Seven Hundred Thousand Dollars ($700,000) or the Minimum Purchase amount, as applicable, less the sum of: (a) the aggregate fees for the actual amount of Services procured; and (b) any Credits (as provided in the next sentence) (the “Shortfall”), if any, on or before August 31, 2013 or August 31, 2014, as applicable. In the event that ABCO refuses or fails, without reasonable cause, to provide any of the Services requested by Evolent (provided the scope of the Services requested is within the scope customarily provided by ABCO), the fees that would otherwise have been applicable had ABCO agreed to provide such Services would count as a “Credit”. As of the date hereof, no such Credits have accrued.
4. TERM AND RENEWAL. The initial term of this Agreement shall commence on the Effective Date and unless sooner terminated in accordance with the terms hereof, shall continue until August 31, 2016 (“Initial Term”). Thereafter, this Agreement shall automatically be renewed for another five-year term (“Renewal Term”) unless either Party elects to terminate this Agreement by providing the other Party with written notice of termination one hundred eighty (180) days prior to the expiration of the current term. (“Initial Term” and “Renewal Term” collectively, the “Term”).
5. REFERRAL FEES, SOLICITATION AND COMPETITION AND POST-CLOSING SERVICES.
5.1 Referral Fees:
5.1.1 During the Term, ABCO will pay Evolent a sales referral fee for any sale made by ABCO that resulted from a “net” new sale from a new customer that was not already in ABCO’s sales pipeline (i.e., a “warm lead”) or a then-current customer of ABCO generated directly by Evolent’s efforts and without any assistance from any ABCO employee or representative (including any Evolent employee that serves on the Board of Directors of ABCO), equal to 5% of the total ABCO revenue from the new customer during the initial twelve (12) months of services under the services agreement with such new customer.
5.1.2 During the Term, Evolent will pay ABCO a sales referral fee for any sale made by Evolent that resulted from a “net” new sale from a new customer that was not already in Evolent’s sales pipeline (i.e., a “warm lead”) or a then-current customer of Evolent generated directly by ABCO’s efforts and without any assistance from any Evolent employee or representative (including any ABCO employee that serves on the Board of Directors of Evolent), in accordance with the following terms:
(a) ABCO will receive a one-time referral fee for any “employee health” diagnostic, consulting or broker services provided by Evolent to a Covered Health System, equal to the lesser of $20,000 or 5% of the total Evolent revenue from the Covered Health System during the initial twelve (12) months of services under the service agreement with such Covered Health System.
(b) ABCO will receive $50,000 per year for three (3) years for each health system joining Evolent as an Employee Health Platform Customer. An “Employee Health Platform Customer” is defined as a health system purchasing diagnostic/consulting services and ongoing medical management/health plan services (i.e., care management, HealthPlaNet care management application, and the TPA platform, etc.).
(c) ABCO will receive $100,000 per year for three (3) years for a health system joining Evolent as a Platform Health Plan Customer. A “Platform Health Plan Customer” is defined as a health system purchasing ongoing medical management services, ongoing health plan outsourcing services (i.e., TPA) and health plan management services for purposes of a licensed insurance entity with at least fifty thousand (50,000) lives (beyond the employee population).
(d) With the exception of making the introduction (either through an email or an in-person meeting) (to generate the “warm lead”), ABCO would not be expected to perform any actual duties or incur actual cost to receive a referral fee.
(e) The annual referral fees for each referral would be capped at the lesser of (x) 5% of annual revenue generated by Evolent for the respective customer and (y) the $50,000 or $100,000 figures described above, as applicable.
6. SOLICITATION AND COMPETITION.
6.1 Scope:
6.1.1 Throughout the Term, ABCO agrees not to offer any ABCO Restricted Products and Services to (a) any Evolent Clients or (b) any Evolent Top Prospects; provided, however, that ABCO shall not be restricted from making any such offer to any Evolent Top Prospect or Evolent Client with whom ABCO was, at the time such Person was identified as an Evolent Top Prospect or became an Evolent Client, engaged in an Active Sales Process. The foregoing restrictions shall not apply in the event of a Change of Control of Evolent or in the event that ABCO ceases to be a shareholder of Evolent.
6.1.2 None of the foregoing would prohibit ABCO from:
(a) Marketing, offering, licensing or selling versions of any of its Crimson Population Risk Management products, or the successors to any such products, provided that such products, or the successors to any such products, are not the same as or substantially similar to (i.e., includes functionality that is redundant in substantial and material respects with) HealthPlaNet as it exists as of the Effective Date.
(b) Supporting employers with care management related best practices and research.
(c) Offering traditional “dedicated advisor” support in conjunction with ABCO’s traditional business intelligence offerings.
(d) Marketing, offering, licensing or selling its employer health product.
(e) Providing physician management consulting and other physician management services.
6.2 Restrictions Relating to Certain ABCO Products and Services: Evolent shall not, until the earlier of (x) ABCO’s ceasing to be a shareholder of Evolent or (y) the seventh (7 ) anniversary of the date of this Agreement, promote, market, provide, offer or sellth (a) unbundled software applications, software tools or other similar technologies (including, without limitation, software as a service, analytics technology or data services) (each, a “Technology Solution”), (b) consulting services that are not intended to lead to or be a part of a Blueprint Services engagement, implementation contract and/or long-term services contract, or (c) any best practices membership programs or unbundled or bundled physician practice management and other physician practice management consulting services, in each case referred to in this clause (c) that are substantially similar to, or that are competitive with, ABCO’s best practices membership programs or physician practice management or other physician practice management consulting services that are offered by ABCO as of the date first written above. For the avoidance of doubt, “unbundled” means on a stand-alone basis, instead of “bundled”, which contemplates that the Technology Solution is both (i) offered as part of a “packaged”, integrated offering, in conjunction with other Evolent products or services that are not Technology Solutions (and not only services that constitute customary software, data and end user support-related services), such as the Exclusive TPA Services, and (ii) incidental to the provision of such other Evolent products or services. Notwithstanding any other provision hereof, the foregoing restrictions in this Section 6.2 shall survive a Change of Control of Evolent for seven (7) years from the date of this Agreement; provided, however, that prior to the seventh (7 ) anniversary of the date of thisth Agreement, the acquiring party in a Change of Control of Evolent shall be not be subject to the foregoing restrictions with respect to any Technology Solutions or consulting services, in each case, that are unrelated to the Evolent assets acquired.
6.3 Non-Solicitation or Hiring: During the Term and for a period of eighteen (18) months thereafter, Evolent shall not solicit or hire any of ABCO’s employees without ABCO’s prior written consent.
7. EXCLUSIVE RESELLER RIGHTS FOR FUTURE PRODUCTS.
In the event that Evolent creates a discrete or segregable product or service that can be sold to healthcare providers, Evolent shall notify ABCO in writing of such new offerings (“New Products”). ABCO shall have a period of ninety (90) days (“New Products Evaluation Period”) within which to conduct its evaluation and diligence with respect to providing such New Products. Evolent shall cooperate with ABCO and provide reasonable assistance and information to ABCO to enable ABCO to conduct its evaluation. Within five (5) business days after the expiration of such New Products Evaluation Period, ABCO shall notify Evolent in writing whether or not it wishes to have the right to resell such New Products. If ABCO elects to resell such New Products, Evolent and ABCO agree to negotiate in good faith on an exclusive basis for one hundred twenty (120) days the terms of a reseller agreement, under which ABCO would be the exclusive distributor (in addition to Evolent) of such New Products.
8. CONFIDENTIALITY.
8.1 Confidential Information: ABCO acknowledges that in connection with its rights and obligations under this Agreement it may gain access to the Confidential Information of Evolent and its customers and Affiliates. Evolent acknowledges that in connection with its rights and obligations under this Agreement, it may gain access to the Confidential Information of ABCO and its customers and Affiliates.
8.2 Non-Disclosure: The Receiving Party may disclose the Disclosing Party’s Confidential Information strictly on a need-to-know basis to only those personnel, including employees of the Receiving Party’s contractors, who require access to the Disclosing Party’s Confidential Information in order to perform or derive benefit from the Services or otherwise meet its obligations under this Agreement. The Receiving Party agrees: (a) to hold the Disclosing Party’s Confidential Information in strict confidence, using the same degree (but no less than a reasonable degree) of care and protection that it exercises with its own Confidential Information of a similar nature; (b) not to directly or indirectly disclose or otherwise make available any Confidential Information of the Disclosing Party to a third party; and (c) not to copy or use the Disclosing Party’s Confidential Information for any purpose other than as necessary to fulfill the Receiving Party’s obligations or exercise its rights under this Agreement. Each Receiving Party is responsible for ensuring that its employees, agents and contractors strictly abide by the requirements of confidentiality and restrictions on use as provided in this Section 8.2 and shall be liable to the Disclosing Party for any acts or omissions of its employees, agents and independent contractors relating to the Disclosing Party’s Confidential Information. The Receiving Party is allowed to disclose Confidential Information of the Disclosing Party to the extent required by Law or by the order or a court of similar judicial or administrative body with jurisdiction, provided that the Receiving Party notifies the Disclosing Party of such required disclosure promptly and in writing and cooperates with the Disclosing Party, at the Disclosing Party’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure. The provisions of this Section 8 shall survive beyond the expiration or termination of this Agreement.
8.3 Injunctive Relief: The Parties acknowledge and agree that monetary damages may be inadequate to compensate for a breach of the provisions contained in this Section 8 or other confidentiality provisions of this Agreement. In the event of such breach, the injured Party shall be entitled to seek injunctive relief (without the need to post bond) and any and all other remedies available at Law or in equity. This Section 8.3 in no way limits the liability or damages that may be assessed against a Party in the event of a breach by the other Party of any of the provisions of this Section 8.
8.4 Residuals: Notwithstanding anything in this Section 8 to the contrary, subject to any applicable statutory intellectual property rights applicable to patents, trademarks or copyrights, either Party may use “Residuals” for any purpose, including without limitation, for use in development, manufacture, promotion, sale and maintenance of its products and services; provided, however, that this right to Residuals does not represent a license under any patents, copyrights or trademarks of the Disclosing Party. The term “Residuals” means any information that is retained in the unaided memories of the Receiving Party’s employees who have had access to the Disclosing Party’s Confidential Information pursuant to the terms of this Agreement.
9. WARRANTIES.
9.1 Authority/No Conflict: ABCO represents and warrants that (a) it has the power and authority to enter into and perform its obligations under this Agreement without conflict with, default under, or violation of any Law, regulation, or agreement binding upon it, and (b) this Agreement has been duly authorized by all necessary organizational action, and duly and validly executed and delivered by it, and constitutes its legally valid and binding obligation, enforceable in accordance with its terms.
9.2 Services: ABCO represents, warrants and covenants that the Services provided under this Agreement will be performed in a professional and workmanlike manner.
9.3 Compliance with Laws/Approvals: Each of ABCO and Evolent shall comply in all material respects with all Laws and regulations applicable to ABCO or Evolent, as applicable, in performing its obligations under this Agreement. To the extent applicable, ABCO shall be responsible for obtaining all necessary permits, licenses, and consents, including governmental approvals, required of ABCO and its contractors in connection with the performance of its obligations under this Agreement, and Evolent shall be responsible for obtaining all necessary permits, licenses, and consents, including governmental approvals, required of Evolent and its contractors in connection with the performance of its obligations under this Agreement.
9.4 Limitations of Warranty: EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, ABCO MAKES NO OTHER WARRANTY OR REPRESENTATION, ORAL, WRITTEN, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE SERVICES, INCLUDING WITHOUT LIMITATION, THEIR QUALITY, PERFORMANCE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, UNINTERRUPTED OR ERROR-FREE OPERATION OR OTHERWISE HEREUNDER. The disclaimer of warranties and limitations set forth in this Agreement constitute an essential part of this Agreement.
10. INDEMNIFICATION.
10.1 IP Indemnification: ABCO shall defend, indemnify and hold harmless Evolent and its Affiliates (other than ABCO), customers, and their respective officers, directors and employees from and against any Losses resulting from a claim that the Services provided by ABCO under this Agreement infringes or misappropriates a third party’s intellectual property rights. ABCO shall also use commercially reasonable efforts to modify the allegedly infringing Services to make it non-infringing, procure a license from the third party claiming infringement to permit Evolent to continue to use the Services, or provide Evolent with functionally equivalent and non-infringing Services. THIS SECTION 10.1 SETS FORTH ABCO’S SOLE AND EXCLUSIVE LIABILITY, AND EVOLENT’S SOLE AND EXCLUSIVE REMEDY, FOR ALLEGATIONS OR CLAIMS OF INFRINGEMENT OF THIRD PARTY RIGHTS OF ANY KIND ASSERTED AGAINST EVOLENT, ITS AFFILIATES (OTHER THAN ABCO), CUSTOMERS AND THEIR RESPECTIVE OFFICERS, DIRECTORS AND EMPLOYEES. ABCO shall not be obligated to indemnify Evolent, its Affiliates, customers, and their respective officers, directors and employees for infringement or misappropriation claims to the extent such claims arise out of use by Evolent or its customers of any of the Services in a manner other than as contemplated by the Parties under this Agreement.
10.2 ABCO’s Indemnification: ABCO hereby agrees to indemnify, defend, and hold Evolent and its Affiliates (other than ABCO), and all of their respective directors, officers, members, managers, partners, employees, agents, successors and assigns, harmless from and against any Losses arising from or related to: (a) the material breach of this Agreement, including any or all SOWs, by ABCO or its personnel (including contractors); (b) breach of any of ABCO’s representations, warranties, and covenants in this Agreement; or (c) negligence or willful misconduct by ABCO or its personnel (including contractors).
10.3 Evolent’s Indemnification: Evolent hereby agrees to indemnify, defend, and hold ABCO and its Affiliates (other than Evolent), and all of their respective directors, officers, members, managers, partners, employees, agents, successors and assigns, harmless from and against any Losses arising from or related to: (a) the material breach of this Agreement, including any or all SOWS, by Evolent or its personnel (including contractors); (b) breach of any of Evolent’s representations, warranties and covenants in this Agreement; or (c) negligence or willful misconduct by Evolent or its personnel (including contractors).
10.4 Indemnification Procedure:
10.4.1 Notice of Claim. Any Party seeking indemnification hereunder (the “Indemnitee”) shall notify the Party liable for such indemnification (the “Indemnitor”) in writing of any event, omission or occurrence that the Indemnitee has determined has given or could give rise to Losses that are indemnifiable hereunder (such written notice being hereinafter referred to as a “Notice of Claims”). Such Notice of Claims shall be given promptly after the Indemnitee becomes aware of its own claim or that of a third party; provided that the failure of any Indemnitee to give notice as provided in this Section 10.4.1 shall not relieve the Indemnitor of its obligations under this Section 10. A Notice of Claims shall specify in reasonable detail the nature and any particulars of the event, omission, or occurrence giving rise to a right of indemnification. The Indemnitor shall satisfy its obligations hereunder, as the case may be, within thirty (30) days of its receipt of a Notice of Claims.
10.4.2 Process. With respect to any third party claim, demand, suit, action, or proceeding that is the subject of a Notice of Claim, the Indemnitor shall, in good faith and at its own expense, defend, contest, or otherwise protect against any such claim, demand, suit, action, or proceeding with legal counsel of its own selection (and reasonably acceptable to the Indemnitee). The Indemnitee shall have the right, but not the obligation, to participate, at its own expense, in the defense thereof through counsel of its own choice and shall have the right, but not the obligation, to assert any and all cross claims or counterclaims it may have. So long as the Indemnitor is defending in good faith any such third party claim, demand, suit, action or proceeding, the Indemnitee shall at all times cooperate, at its own expense, in all reasonable ways with, make its relevant files and records available for inspection and copying by, and make its employees available or otherwise render reasonable assistance to, the Indemnitor. In the event that the Indemnitor fails to timely defend, contest or otherwise protect against any such third party claim, demand, suit, action, or proceeding, the Indemnitee shall have the right, but not the obligation, to defend, contest, assert cross claims or counterclaims, or otherwise protect against, the same and may make any compromise or settlement thereof and be entitled to all amounts paid as a result of such third party claim, demand, suit, or action or any compromise or settlement thereof. The Indemnitor will not consent to the entry of any judgment or enter into any settlement with respect to any such third party claim, demand, suit, action or proceeding without the prior written consent of the Indemnitee, which will not be unreasonably withheld, and provided that no settlement shall require the Indemnitee to admit liability, or perform or become subject to additional obligations thereunder.
11. LIMITS OF LIABILITY. EXCEPT WITH RESPECT TO OR BREACH BY EITHER PARTY OF THE OTHER PARTY’S CONFIDENTIAL INFORMATION UNDER SECTION 8,
NEITHER EVOLENT NOR ABCO SHALL BE LIABLE FOR, NOR WILL THE MEASURE OF DAMAGES INCLUDE, ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OR AMOUNTS INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF INCOME, PROFITS, OR SAVINGS, LOSS OF DATA, OR COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES, ARISING OUT OF OR RELATING TO ITS PERFORMANCE UNDER THIS AGREEMENT UNDER ANY CAUSE OF ACTION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL EITHER PARTY’S LIABILITY EXCEED THE AMOUNT OF REVENUE ACTUALLY RECEIVED BY ABCO IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO THE CLAIM.
12. TERMINATION.
12.1 Termination for Cause: Either Party shall have the right to terminate this Agreement in the event the other Party materially violates a material provision of this Agreement and such violation is not cured or cannot be cured within thirty (30) days after written notice of such material violation.
12.2 Survival: The rights and obligations contained in Sections 1, 5 (with respect to Evolent’s payment obligations that may extend beyond the Term), 6.2, 6.3, 8, 9.4, 10, 11, 12.2, 13 and 14 shall survive any termination or expiration of this Agreement.
13. ESCALATION; DISPUTE RESOLUTION. Subject to the terms of Section 13.5, the procedures of this Section 13 will control the resolution of any and all disputes between the Parties including, without limitation, any dispute relating to disputed monies owing or breach of warranty (each, a “Dispute”). The Parties will seek to resolve each Dispute as follows:
13.1 First Level Performance Review: Each Party’s Relationship Manager will meet as often as will reasonably be required by either Party to review the performance of either Party under this Agreement and to resolve the Dispute. If these representatives are unable to resolve the Dispute within ten (10) business days after the initial request for a meeting, then the Parties will submit the Dispute to an executive level performance review as provided in Section 13.2 below.
13.2 Executive Level Performance Review: Face-to-face negotiations will be conducted by a senior executive officer of each Party (or such other executive as a Party may designate). If these representatives are unable to resolve the Dispute within five (5) business days after the Parties have commenced negotiations or ten (10) business days have passed since the initial request for a meeting at this level, then the Parties may jointly engage the services of a third-party mediator.
13.3 Arbitration: If the Parties are unable to resolve the Dispute through the alternative mechanisms described above, the Parties shall submit the Dispute for resolution through binding arbitration, except as otherwise provided in Section 13.5. The Parties agree and consent to such arbitration proceeding taking place in Wilmington, Delaware, and in accordance with the Commercial Arbitration Rules of the American Arbitration Association, except that discovery may be had in accordance with the Federal Rules of Civil Procedure. The Parties shall be permitted at least six (6) months from the date of the filing of the Arbitration Demand to conduct discovery. The arbitration proceedings shall be conducted by a panel of three (3) impartial arbitrators, with each Party selecting one (1) of the impartial arbitrators and those two (2) arbitrators then selecting the third impartial arbitrator, all such selections to be made through the procedures of the American Arbitration Association. At least one (1) arbitrator must be an attorney licensed under the Laws of Pennsylvania and at least one (1) arbitrator (may be the same Person as the Pennsylvania attorney) must have direct and substantial experience in the industry pertinent to the subject matter of the Dispute. Judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof; provided, however, in rendering its decision, the arbitrators shall be bound by the Laws of the Commonwealth of Pennsylvania (without regard to its conflicts of laws provisions) and by the terms and conditions of this Agreement setting forth the rights and responsibilities of the Parties. The decision of the arbitration panel shall be accompanied by a written opinion setting forth the factual and legal bases for the award. The arbitrators shall issue such written decision within thirty (30) days of the conclusion of the arbitration hearing. The arbitrators appointed hereunder shall not have the power to award punitive damages. Service of a petition to confirm the arbitration award may be made by United States mail, postage prepaid, or by any regularly conducted commercial express mail service, to the attorney for the Party or, if not so represented, to the Party at the address set forth herein, or to the Party’s last known business address. The prevailing Party in any action related to or arising under this Agreement shall be entitled to reasonable attorneys’ fees and costs.
13.3.1 For any Dispute in which the amount in controversy is at least One Million Dollars ($1,000,000), the following additional procedures apply:
(a) a certified court reporter shall transcribe the arbitration hearings; The Parties initially split the cost of the reporter, but such costs shall ultimately be awarded to the Party prevailing in the arbitration proceeding; and
(b) either Party may take an appeal from the final decision by making a written demand within twenty (20) days of the award.
13.3.2 Any such appeal shall be conducted as follows:
(a) such appeals are limited to issues of Law (i.e., the original award (1) contains material errors of Law such that the original award is not founded on any appropriate legal basis; (2) is based on factual findings clearly unsupported by the record; or (3) is subject to one or more grounds set forth in Section 10 of the Federal Arbitration Act or 42 Pa. C.S.A. §7341 for vacating an award);
(b) the Person hearing the appeal shall be a former federal judge mutually agreed to by the Parties or selected through the procedures of the American Arbitration Association. The former judge shall act as the appellate arbitrator;
(c) the submissions on appeal are limited to (1) the record of the arbitration, (2) a 30-page brief by the appellant, (3) a 30-page brief by the appellee and (4) a 10-page response by the appellant. The appellate arbitrator will set the dates for submission of the briefs. Oral argument may be heard at the discretion of the appellate arbitrator;
(d) the appellate arbitrator shall render a written decision within sixty (60) days of the final submission;
(e) during the pendency of the arbitration appeal, the Parties agree to suspend any running of the time to seek enforcement of the original award. The Parties also agree to waive any appeal to state or federal courts based on the grounds set forth in Section 10 of the Federal Arbitration Act for vacating an award and 42 Pa. C.S.A. § 7341;
(f) the appellate arbitrator must award costs and attorneys’ fees to the prevailing Party; and
(g) the decision of the appellate arbitrator shall be final.
13.4 Continued Performance: Each Party acknowledges that the timely and complete performance of its obligations pursuant to this Agreement is critical to the business and operations of the other Party. Accordingly, in the event of a Dispute, each Party shall continue to so perform all of its obligations under this Agreement, in good faith during the resolution of such Dispute unless and until (a) authority to stop doing so is granted or conferred by a court of competent jurisdiction or (b) this Agreement is terminated in accordance with the provisions hereof.
13.5 Equitable Relief: Notwithstanding anything contained in this Agreement to the contrary, the Parties will be entitled to seek injunctive relief, specific performance or other equitable relief whenever the facts or circumstances would permit a Party to seek equitable relief in a court of competent jurisdiction. Without limiting the generality of the foregoing, (a) Evolent agrees that there would be irreparable harm to ABCO in the event of any such breach by Evolent of Section 6.2 and ABCO shall be entitled to (i) injunctive relief to prevent breaches of Section 6.2, (ii) specific performance of this Agreement, and (iii) any other remedies provided by Law or equity, including without limitation an award for damages, and (b) ABCO agrees that there would be irreparable harm to Evolent in the event of any such breach by ABCO of Section 6.1.1, and Evolent shall be entitled to (i) injunctive relief to prevent breaches of Section 6.1.1, (ii) specific performance of this Agreement, and (iii) any other remedies provided by Law or equity, including without limitation an award for damages.
14. MISCELLANEOUS PROVISIONS.
14.1 Good Faith and Mutual Agreement: Unless otherwise expressly stated in such provision, if a provision in this Agreement calls for the consent of a Party or the mutual agreement of the Parties, the Parties agree that each will act in good faith, will not unreasonably withhold their consent and that deference shall be given to the other Party’s reasonable business requirements, and the requirements of the Parties’ respective regulators and internal controls procedures.
14.2 Independent Contractor: The relationship of ABCO to Evolent shall at all times be that of an independent contractor. Nothing in this Agreement shall be construed to create any partnership, association, joint venture, or employment between the Parties. Each Party shall have the sole and exclusive control over the labor and employee relations policies and policies relating to wages, hours, working conditions, benefits, or other conditions of its personnel and shall be responsible and liable for the acts and omissions of its employees, agents and contractors.
14.3 Assignability: Evolent has entered into this Agreement because of the expertise of ABCO, and ABCO understands that the obligations of ABCO are personal to ABCO and may not be assigned to any other company, partnership or individual without the express written consent of Evolent; provided, however, that no consent shall be required if an assignment is made in connection with a sale of all or substantially all of ABCO’s assets or stock, or in connection with a merger or Change of Control. Evolent may assign this Agreement (including the licenses granted pursuant to this Agreement) to any Affiliate of Evolent as part of an internal reorganization or in connection with a sale of substantially all of its assets or stock, or in connection with a merger or Change of Control.
14.4 Governing Law and Jurisdiction: This Agreement shall be governed by and construed and enforced in accordance with the Laws of the Commonwealth of Pennsylvania, without regard to that state or any other state’s conflicts of law rules. Each Party irrevocably consents to the personal jurisdiction of the state and federal courts located in Wilmington, Delaware for any suit or action arising from or related to this Agreement.
14.5 Force Majeure: Neither Party shall be deemed in default of this Agreement to the extent that performance of their obligations or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, act of government, or any other cause beyond the control of such Party, provided that such Party gives the other Party written notice thereof promptly and, in any event, within fifteen (15) days of discovery thereof, and uses its commercially reasonable efforts to cure any such breach.
14.6 Entire Agreement: This Agreement and its exhibits, schedules, and attachments constitute the entire understanding between the Parties with respect to the subject matter hereof and supersede all prior written or oral representations with respect to the subject matter hereof. This Agreement may not be modified, amended, or otherwise changed in any manner except by a written instrument executed by the Party against whom enforcement is sought.
14.7 Cumulative Remedies: Except as expressly provided in this Agreement, (a) remedies for breach are cumulative and may be exercised separately or concurrently, (b) the exercise of one remedy is not an election of that remedy to the exclusion of others, and (c) the provision for any remedy in this Agreement shall not affect remedies otherwise available at Law or in equity.
14.8 No Third Party Beneficiaries: The Parties do not intend that this Agreement creates any right or cause of action in or on behalf of any Person other than Evolent and ABCO.
14.9 Headings: Section headings have been included in this Agreement merely for convenience of reference. They are not to be considered part of, or to be used in interpreting this Agreement.
14.10 Binding Effect: The covenants and conditions contained herein will apply to and bind the successors, representatives, and permitted assigns of the Parties.
14.11 Expenses: Each Party shall be responsible for its own legal, accounting and other transaction costs relating to the transactions contemplated in this Agreement.
14.12 Notices: All notices required to be given hereunder shall be in writing and given hereunder, as elected by the Party giving notice, as follows: (a) by personal delivery, (b) sent by overnight courier with confirmation of receipt, or (c) dispatched by certified or registered mail, return receipt requested, postage prepaid, addressed to the Parties as follows.
If to Evolent: Evolent, Inc.
800 N. Glebe Road, Suite 500
Arlington, VA 22203
Attention: President
Morgan Lewis & Bockius, LLP
225 Franklin Street
Boston, MA 02110
Attention: Mark B. Stein, Esq.
Fax No.: (617) 341-7701
If to ABCO: The Advisory Board Company
2445 M St. NW
Washington, DC 20037
Attention: General Counsel
Notice shall be deemed given (a) on the date of receipt if delivered personally; (b) on the business day following delivery of such notice to the overnight courier; or (c) three (3) business days after deposit in the mail in accordance with the foregoing. Either Party may change the address to which to send notices by notifying the other Party of such change of address in writing in accordance with the foregoing.
14.13 Press Releases: No press releases or other public announcements concerning the transactions contemplated by this Agreement shall be made by ABCO or Evolent without the prior written consent of both Parties; provided, however, that nothing herein shall prevent a Party from supplying such information or making statements as required by governmental authority or in order for a Party to satisfy its legal obligations (prompt notice of which shall in any such case be given to the other Party).
14.14 Severability: Any terms or provisions of this Agreement that shall prove to be invalid, void or illegal shall in no way affect, impair, or invalidate any other term or provision herein and such remaining terms and provisions shall remain in full force and effect provided that its general purposes are still reasonably capable of being effected. All such terms or provisions which are determined by a court of competent jurisdiction or other dispute resolution proceeding to be invalid, void or illegal shall be construed and limited so as to allow the maximum effect permissible by Law.
14.15 Waiver: The waiver by either Party to this Agreement of any one or more defaults, if any, on the part of the other, shall not be construed to operate as a waiver of any other or future defaults under the same or different terms, conditions or covenants contained in this Agreement.
IN WITNESS WHEREOF, the Parties have executed this Agreement effective as of the date first written above.
THE ADVISORY BOARD COMPANY EVOLENT HEALTH, INC.
/s/ Evan Farber
By: Evan Farber By:
Its: General Counsel Its:
[Signature Page to Amended and Restated Services, Reseller and Non-Competition Agreement]
IN WITNESS WHEREOF, the Parties have executed this Agreement effective as of the date first written above.
THE ADVISORY BOARD COMPANY EVOLENT HEALTH, INC.
/s/ Frank Williams
By: By: Frank Williams
Its: Its: CEO
| Entailment |
622_nda-12 | 622_nda-12_0 | Q: Receiving Party may independently develop information similar to Confidential Information.
Text: Exhibit 10.16
AMENDED AND RESTATED
SERVICES, RESELLER AND NON-COMPETITION AGREEMENT
THIS AMENDED AND RESTATED SERVICES, RESELLER AND NON-COMPETITION AGREEMENT (this “Agreement”) is made and entered into effective as of June 27, 2013 (the “Effective Date”) by and between The Advisory Board Company, a Delaware corporation (“ABCO”), and Evolent Health, Inc. (f/k/a VPHealth, Inc.), a Delaware corporation (“Evolent”), (each, a “Party”, and collectively, the “Parties”).
RECITALS
WHEREAS, ABCO and Evolent entered into a Services, Reseller and Non-Competition Agreement (the “Original Agreement”), effective as of August 31, 2011 (the “Original Effective Date”);
WHEREAS, since entering into the Original Agreement, Evolent and ABCO have continued to explore ways to improve the efficiency and implementation of their relationship; and
WHEREAS, as a result of the foregoing efforts, the Parties have agreed to amend and restate the Original Agreement as set forth in this Agreement.
NOW, THEREFORE, in consideration of the above recitals, the terms and conditions hereinafter set forth, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto agree as follows:
1. DEFINITIONS. For purposes of this Agreement:
1.1 “ABCO Restricted Products and Services” means (a) care management services including, but not limited to, traditional disease management services, direct patient outreach and other service-based care management offerings (e.g., readmissions management teams, nurse call centers, on-site care management teams); (b) care management workflow software designed for and used by provider-owned payor organizations or other entities intending to conduct active care management campaigns targeted at managing population health/longitudinal outcomes (i.e, solutions that are the same as or substantially similar to (i.e. functionality that is redundant in substantial and material respects with) HealthPlaNet); (c) services primarily intended to support cost reduction and benefit changes for health system employees; (d) consulting services comparable and competitive with blueprint consulting services offered by Evolent as of the Effective Date (“Blueprint Services”), (e) Exclusive TPA Services or (f) Crimson Care Registry products. For the avoidance of doubt, Restricted Products and Services does not include behavioral health-related services or software (e.g., Askesis Development Group software), services similar to those offered by UPMC WorkPartners (e.g., “Take-a-Healthy-Step” or similar health and wellness programs, occupational medicine, on-site clinic implementation and administration, employee assistance services, absence management or workers’ compensation services), or software or solutions similar to those offered by EBenefits Solutions, LLC.
1.2 “Active Sales Process”, with respect to any Person as of any date on which Evolent proposes to add such Person to the list of Evolent Top Prospects, means such Person (a) is not an Evolent Client as of such date and (b) either (i) has purchased ABCO Restricted Products and Services from ABCO prior to such date or (b) was engaged in active discussions with ABCO about acquiring ABCO Restricted Products and Services (including, but not limited to, a review of the applicable offering of ABCO Restricted Products and Services) as of such date.
1.3 “Affiliate” means any Person which Controls, is Controlled by, or is in common Control with, another Person.
1.4 “Business Plan” has the meaning set forth in that certain Intellectual Property License and Data Access Agreement between the Parties.
1.5 “Change of Control” with respect to any entity means a transaction or series of related transactions in which a Person, or a group of related Persons, acquires from stockholders of the subject entity, the entity’s shares representing more than fifty percent (50%) of the outstanding voting power of such entity.
1.6 “Confidential Information” means any and all technical and non-technical information, whether conveyed verbally, in writing, electronically or by any other means, including, but not limited to, trade secrets, source code, technology, know-how and proprietary information, techniques, plans or any other information relating to any research project, analysis, work in process, future development, scientific, engineering, marketing or business plans or financial, contractual or personnel matters relating to either Party or its present or future products, services, sales, suppliers, identity of and information relating to customers and prospective customers, customer or prospect list, prospective employees, investors or affiliates or other proprietary information disclosed or otherwise supplied in confidence by either Party to the other, to the extent that such information is provided pursuant to this Agreement by one Party to the other Party and is marked “confidential” or “proprietary” or that should be reasonably understood by the Receiving Party (based on the nature of the information or the context in which the information is disclosed) should be considered confidential. Confidential Information will not include information to the extent that: (a) such information is or becomes publicly available other than through any act or omission of either Party in breach of this Agreement; (b) such information was received by the Receiving Party, other than under an obligation of confidentiality, from a third party who had no obligation of confidentiality to the other Party; (c) such information was in the possession of the Receiving Party at the time of the disclosure or was independently developed by the Receiving Party, as reflected by the Receiving Party’s internal, written and dated documentation; or (d) an applicable regulation, court order or other legal process requires the disclosure of such information, provided that prior to such disclosure the Disclosing Party will give notice to the other Party so that the other Party may take reasonable steps to oppose or limit such disclosure, so that the Disclosing Party does not disclose any more information than necessary to comply with such legal process. The burden of proof that Confidential Information falls into any one of the above exemptions will be borne by the Party claiming such exemption with documentation or other credible evidence.
1.7 “Control” as used with respect to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities, by agreement or otherwise.
1.8 “Evolent Clients” means entities under a current contract with Evolent for an implementation and/or long-term services contract. 1.9 “Evolent Top Prospects” means, as of any date, up to twenty (20) potential Evolent customers in the Evolent sales pipeline identified by Evolent that are not Evolent Clients as of such date, and (a) are engaged in active discussions with Evolent regarding purchasing Evolent products and services and/or (b) are under a current contract with Evolent for Blueprint Services or other services that do not constitute implementation or long-term services; provided, however, that (i) the list of such potential Evolent customers may be updated by Evolent on a quarterly basis, and ABCO shall have the opportunity upon receipt of each such quarterly update to notify Evolent if any of the Persons added to such list are in an Active Sales Process with ABCO and shall therefore be removed from such list, and (ii) no Person shall remain on the list of Evolent Top Prospects for more than (x) twelve (12) consecutive months, in the case of potential Evolent customers without a signed agreement with Evolent, or (y) twenty-four (24) consecutive months, in the case of potential Evolent Clients that signed an agreement for Blueprint Services with Evolent before or within twelve (12) months of being added to the list of Evolent Top Prospects.
1.10 “Exclusive TPA Services” means certain services as set forth on Schedule 1 of the UPMC Reseller Agreement (as in effect on the Effective Date), to the extent that UPMC Health Plan, Inc., a Pennsylvania nonprofit corporation (“UPMC”), has the exclusive right to provide such services to Evolent, for resale by Evolent to its customers.
1.11 “Disclosing Party” means a Party that provides Confidential Information to the other Party, or the other Party’s Affiliates.
1.12 “Governmental Authority” means any federal, state, municipal, local, territorial, or other governmental department, regulatory authority, judicial or administrative body, whether domestic, foreign or international.
1.13 “Law” means all international, federal, country, state, provincial, local and other laws, rules and regulations, declaration, decree, directive, legislative enactment, order, code, ordinance, regulation, rule or other binding restriction of or by any Governmental Authority, as the same are promulgated, supplemented or amended from time to time.
1.14 “Loss” individually, and collectively, “Losses” means all claims, liabilities, obligations, losses, costs, expenses (including, without limitation, legal, accounting and similar expenses), litigation, proceedings, fines, taxes, levies, imposts, duties, deficiencies, assessments, charges, penalties, allegations, demands, damages (including, but not limited to, actual, punitive or consequential, foreseen or unforeseen, known or unknown, fixed or contingent, and matured or unmatured), civil and criminal violations of Law, settlements and judgments of any kind or nature whatsoever.
1.15 “Person” means any individual, corporation, partnership, firm, joint venture, association, limited liability company, limited liability partnership, joint-stock company, trust, joint venture, unincorporated organization, governmental, judicial or regulatory body, business unit, division or any other business entity, organization or Governmental Authority.
1.16 “Receiving Party” means a Party that receives Confidential Information from the other Party or the other Party’s Affiliates.
1.17 “Statement of Work” or “SOW” means an agreement by and between ABCO and Evolent that contains the detailed description of services, scope, specifications, pricing, implementation plan, timetables, milestones, and other terms and conditions for each procurement of services, as applicable.
1.18 “UPMC Reseller Agreement” means that certain Second Amended and Restated Reseller, Services and Non-Competition Agreement between UPMC and Evolent dated as of [the Effective Date].
2. SERVICES TO BE PROVIDED BY ABCO.
2.1 General Services:
2.1.1 Minimum Purchase. The Parties hereby acknowledge and agree that Evolent has purchased from ABCO a minimum of Two Hundred Thousand Dollars ($200,000) of services (as described in Section 2.2.1) (the “Original Minimum Purchase”) for delivery between the Original Effective Date and the first anniversary thereof.
2.1.2 Statements of Work. The specific description, price, service levels (if applicable) and other project, service, and/or customer-specific terms for a particular service that may be provided by ABCO to Evolent (each, a “Service”, and collectively, the “Services”) shall be set forth in a Statement of Work that will be created on a project by project basis.
2.2 Right of First Offer and Process for Invoking:
2.2.1 Applicable Services. Throughout the Term, ABCO shall have the right of first offer to provide the following services to Evolent and Evolent’s customers:
(a) Physician practice management consulting and other physician practice management services;
(b) Physician incentive design services;
(c) Medical home development consulting services; and
(d) Performance analytics shared with physicians with the intent to improve outcomes.
2.2.2 Process for Exercising Right of First Offer. Evolent shall notify ABCO in writing in the event Evolent desires to receive any of the above services (“First Offer Services”). ABCO shall have a period of thirty (30) days (“First Offer Services Evaluation Period”) within which to conduct its evaluation and diligence with respect to providing such First Offer Services. Evolent shall cooperate with ABCO and provide reasonable assistance and information to ABCO to enable ABCO to conduct its evaluation. Within five (5) business days after the expiration of such First Offer Services Evaluation Period, ABCO shall notify Evolent in writing whether or not it wishes to provide such services to Evolent. If ABCO elects to provide such First Offer Services, Evolent agrees to engage in good faith negotiations with ABCO, on an exclusive basis for a period of sixty (60) days, regarding the specific terms covering such First Offer Services.
2.3 Failure to Execute a Service Agreement for the VBC Innovation Center: The Parties acknowledge and agree that it was their intent as of the Original Effective Date to enter into a service agreement under which Evolent would engage ABCO to provide certain consulting, development and support services in connection with the creation, launch, implementation and ongoing support of a Value-Based Care Innovation Center (the “VBC Innovation Center”), in consideration for which Evolent would pay ABCO a fixed fee of Eight Hundred Thousand Dollars ($800,000) per year (“Fixed Fee”) for each of the first two (2) years of the term of such VBC Innovation Center service agreement. The Parties acknowledge and agree that, notwithstanding the fact that they negotiated with diligence and in good faith the specific terms and conditions of such service agreement, the Parties were unable to reach an agreement with respect to the VBC Innovation Center. Accordingly, the Original Minimum Purchase is increased to One Million Two Hundred Thousand Dollars ($1,200,000) (the “Minimum Purchase”) as follows: (a) between the Original Effective Date and the second anniversary thereof, Evolent shall have purchased from ABCO a minimum of Seven Hundred Thousand Dollars ($700,000) of services for delivery on or prior to such second anniversary of the Original Effective Date), and (b) inclusive of the purchases described in clause (a), between the Original Effective Date and the third anniversary thereof, Evolent shall have purchased from ABCO a minimum of One Million Two Hundred Thousand Dollars ($1,200,000) of services for delivery on or prior to such third anniversary of the Original Effective Date); provided that, for purposes of this sentence, “services” shall include consulting, software, professional or analytic services provided from time to time by ABCO to Evolent (other than services in connection with the provision of any office space by or on behalf of ABCO to Evolent) or, pursuant to a joint written proposal by ABCO and Evolent, to any Evolent Client.
2.4 Reservation of Rights: For the avoidance of doubt, Evolent is not precluded from offering and providing services directly to its customers, subject (a) to (i.e., after ABCO has had the full opportunity to exercise) ABCO’s right of first offer to provide any First Offer Services in accordance with Section 2.2) and (b) to Evolent’s compliance with its non-competition obligations as set forth in Section 6.2.
2.5 Designation of Relationship Managers: In order to support the launch and ongoing success of the exclusive reseller relationship between ABCO and Evolent, each Party agrees to designate a senior level individual who will serve as the primary liaison and “go to” contact and relationship manager for such Party (each, a “Relationship Manager”). Each Party’s Relationship Manager’s role and responsibilities would include: (a) facilitating day-to-day communications between the Parties regarding customer-facing activities, such as marketing, promotional and sales activities and preparing and submitting bids, proposals, responses to requests for proposals, fee estimates, Statements of Work and project plans; (b) receiving and submitting requests between the Parties for information and/or assistance; (c) overseeing the efficient knowledge transfer and flow of information between the Parties; (d) facilitating communications between the appropriate individuals within Evolent and ABCO, with respect to product and service offering development; and (e) providing the first level of performance review or escalation in the event of a Dispute as provided in Section 13. The Relationship Managers will meet regularly, but no less frequently than monthly, as reasonably necessary, to maintain a good working relationship between the Parties. Each Party may change its Relationship Manager by giving the other Party reasonable notice as long as the change is implemented in a manner that does not cause any significant disruption to each Party’s business operations and business relationship.
3. FEES; PAYMENT TERMS; SHORTFALL.
3.1 Fees; Timing of Payments: Evolent shall pay ABCO the applicable fees for the Services performed by ABCO pursuant to a Statement of Work, as follows: (a) unless the Parties otherwise agree in writing, a deposit of 50% of the total fees for the particular project shall be paid upon signing of the Statement of Work; (b) ABCO will submit an invoice to Evolent for the balance upon completion of the work; and (c) Evolent shall pay ABCO for such invoiced amount within thirty (30) days after receipt of such invoice.
3.2 Minimum Purchase and Shortfall: Evolent agrees to pay ABCO the Minimum Purchase. If the aggregate amount of Services actually procured by Evolent from ABCO is not equal to or greater than (a) Seven Hundred Thousand Dollars ($700,000) of services for delivery on or prior to the second anniversary of the Original Effective Date or (b) inclusive of the purchase described in clause (a), the Minimum Purchase of services for delivery on or prior to the third anniversary of the Original Effective Date, Evolent shall pay ABCO the amount of the shortfall (i.e., the difference between Seven Hundred Thousand Dollars ($700,000) or the Minimum Purchase amount, as applicable, less the sum of: (a) the aggregate fees for the actual amount of Services procured; and (b) any Credits (as provided in the next sentence) (the “Shortfall”), if any, on or before August 31, 2013 or August 31, 2014, as applicable. In the event that ABCO refuses or fails, without reasonable cause, to provide any of the Services requested by Evolent (provided the scope of the Services requested is within the scope customarily provided by ABCO), the fees that would otherwise have been applicable had ABCO agreed to provide such Services would count as a “Credit”. As of the date hereof, no such Credits have accrued.
4. TERM AND RENEWAL. The initial term of this Agreement shall commence on the Effective Date and unless sooner terminated in accordance with the terms hereof, shall continue until August 31, 2016 (“Initial Term”). Thereafter, this Agreement shall automatically be renewed for another five-year term (“Renewal Term”) unless either Party elects to terminate this Agreement by providing the other Party with written notice of termination one hundred eighty (180) days prior to the expiration of the current term. (“Initial Term” and “Renewal Term” collectively, the “Term”).
5. REFERRAL FEES, SOLICITATION AND COMPETITION AND POST-CLOSING SERVICES.
5.1 Referral Fees:
5.1.1 During the Term, ABCO will pay Evolent a sales referral fee for any sale made by ABCO that resulted from a “net” new sale from a new customer that was not already in ABCO’s sales pipeline (i.e., a “warm lead”) or a then-current customer of ABCO generated directly by Evolent’s efforts and without any assistance from any ABCO employee or representative (including any Evolent employee that serves on the Board of Directors of ABCO), equal to 5% of the total ABCO revenue from the new customer during the initial twelve (12) months of services under the services agreement with such new customer.
5.1.2 During the Term, Evolent will pay ABCO a sales referral fee for any sale made by Evolent that resulted from a “net” new sale from a new customer that was not already in Evolent’s sales pipeline (i.e., a “warm lead”) or a then-current customer of Evolent generated directly by ABCO’s efforts and without any assistance from any Evolent employee or representative (including any ABCO employee that serves on the Board of Directors of Evolent), in accordance with the following terms:
(a) ABCO will receive a one-time referral fee for any “employee health” diagnostic, consulting or broker services provided by Evolent to a Covered Health System, equal to the lesser of $20,000 or 5% of the total Evolent revenue from the Covered Health System during the initial twelve (12) months of services under the service agreement with such Covered Health System.
(b) ABCO will receive $50,000 per year for three (3) years for each health system joining Evolent as an Employee Health Platform Customer. An “Employee Health Platform Customer” is defined as a health system purchasing diagnostic/consulting services and ongoing medical management/health plan services (i.e., care management, HealthPlaNet care management application, and the TPA platform, etc.).
(c) ABCO will receive $100,000 per year for three (3) years for a health system joining Evolent as a Platform Health Plan Customer. A “Platform Health Plan Customer” is defined as a health system purchasing ongoing medical management services, ongoing health plan outsourcing services (i.e., TPA) and health plan management services for purposes of a licensed insurance entity with at least fifty thousand (50,000) lives (beyond the employee population).
(d) With the exception of making the introduction (either through an email or an in-person meeting) (to generate the “warm lead”), ABCO would not be expected to perform any actual duties or incur actual cost to receive a referral fee.
(e) The annual referral fees for each referral would be capped at the lesser of (x) 5% of annual revenue generated by Evolent for the respective customer and (y) the $50,000 or $100,000 figures described above, as applicable.
6. SOLICITATION AND COMPETITION.
6.1 Scope:
6.1.1 Throughout the Term, ABCO agrees not to offer any ABCO Restricted Products and Services to (a) any Evolent Clients or (b) any Evolent Top Prospects; provided, however, that ABCO shall not be restricted from making any such offer to any Evolent Top Prospect or Evolent Client with whom ABCO was, at the time such Person was identified as an Evolent Top Prospect or became an Evolent Client, engaged in an Active Sales Process. The foregoing restrictions shall not apply in the event of a Change of Control of Evolent or in the event that ABCO ceases to be a shareholder of Evolent.
6.1.2 None of the foregoing would prohibit ABCO from:
(a) Marketing, offering, licensing or selling versions of any of its Crimson Population Risk Management products, or the successors to any such products, provided that such products, or the successors to any such products, are not the same as or substantially similar to (i.e., includes functionality that is redundant in substantial and material respects with) HealthPlaNet as it exists as of the Effective Date.
(b) Supporting employers with care management related best practices and research.
(c) Offering traditional “dedicated advisor” support in conjunction with ABCO’s traditional business intelligence offerings.
(d) Marketing, offering, licensing or selling its employer health product.
(e) Providing physician management consulting and other physician management services.
6.2 Restrictions Relating to Certain ABCO Products and Services: Evolent shall not, until the earlier of (x) ABCO’s ceasing to be a shareholder of Evolent or (y) the seventh (7 ) anniversary of the date of this Agreement, promote, market, provide, offer or sellth (a) unbundled software applications, software tools or other similar technologies (including, without limitation, software as a service, analytics technology or data services) (each, a “Technology Solution”), (b) consulting services that are not intended to lead to or be a part of a Blueprint Services engagement, implementation contract and/or long-term services contract, or (c) any best practices membership programs or unbundled or bundled physician practice management and other physician practice management consulting services, in each case referred to in this clause (c) that are substantially similar to, or that are competitive with, ABCO’s best practices membership programs or physician practice management or other physician practice management consulting services that are offered by ABCO as of the date first written above. For the avoidance of doubt, “unbundled” means on a stand-alone basis, instead of “bundled”, which contemplates that the Technology Solution is both (i) offered as part of a “packaged”, integrated offering, in conjunction with other Evolent products or services that are not Technology Solutions (and not only services that constitute customary software, data and end user support-related services), such as the Exclusive TPA Services, and (ii) incidental to the provision of such other Evolent products or services. Notwithstanding any other provision hereof, the foregoing restrictions in this Section 6.2 shall survive a Change of Control of Evolent for seven (7) years from the date of this Agreement; provided, however, that prior to the seventh (7 ) anniversary of the date of thisth Agreement, the acquiring party in a Change of Control of Evolent shall be not be subject to the foregoing restrictions with respect to any Technology Solutions or consulting services, in each case, that are unrelated to the Evolent assets acquired.
6.3 Non-Solicitation or Hiring: During the Term and for a period of eighteen (18) months thereafter, Evolent shall not solicit or hire any of ABCO’s employees without ABCO’s prior written consent.
7. EXCLUSIVE RESELLER RIGHTS FOR FUTURE PRODUCTS.
In the event that Evolent creates a discrete or segregable product or service that can be sold to healthcare providers, Evolent shall notify ABCO in writing of such new offerings (“New Products”). ABCO shall have a period of ninety (90) days (“New Products Evaluation Period”) within which to conduct its evaluation and diligence with respect to providing such New Products. Evolent shall cooperate with ABCO and provide reasonable assistance and information to ABCO to enable ABCO to conduct its evaluation. Within five (5) business days after the expiration of such New Products Evaluation Period, ABCO shall notify Evolent in writing whether or not it wishes to have the right to resell such New Products. If ABCO elects to resell such New Products, Evolent and ABCO agree to negotiate in good faith on an exclusive basis for one hundred twenty (120) days the terms of a reseller agreement, under which ABCO would be the exclusive distributor (in addition to Evolent) of such New Products.
8. CONFIDENTIALITY.
8.1 Confidential Information: ABCO acknowledges that in connection with its rights and obligations under this Agreement it may gain access to the Confidential Information of Evolent and its customers and Affiliates. Evolent acknowledges that in connection with its rights and obligations under this Agreement, it may gain access to the Confidential Information of ABCO and its customers and Affiliates.
8.2 Non-Disclosure: The Receiving Party may disclose the Disclosing Party’s Confidential Information strictly on a need-to-know basis to only those personnel, including employees of the Receiving Party’s contractors, who require access to the Disclosing Party’s Confidential Information in order to perform or derive benefit from the Services or otherwise meet its obligations under this Agreement. The Receiving Party agrees: (a) to hold the Disclosing Party’s Confidential Information in strict confidence, using the same degree (but no less than a reasonable degree) of care and protection that it exercises with its own Confidential Information of a similar nature; (b) not to directly or indirectly disclose or otherwise make available any Confidential Information of the Disclosing Party to a third party; and (c) not to copy or use the Disclosing Party’s Confidential Information for any purpose other than as necessary to fulfill the Receiving Party’s obligations or exercise its rights under this Agreement. Each Receiving Party is responsible for ensuring that its employees, agents and contractors strictly abide by the requirements of confidentiality and restrictions on use as provided in this Section 8.2 and shall be liable to the Disclosing Party for any acts or omissions of its employees, agents and independent contractors relating to the Disclosing Party’s Confidential Information. The Receiving Party is allowed to disclose Confidential Information of the Disclosing Party to the extent required by Law or by the order or a court of similar judicial or administrative body with jurisdiction, provided that the Receiving Party notifies the Disclosing Party of such required disclosure promptly and in writing and cooperates with the Disclosing Party, at the Disclosing Party’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure. The provisions of this Section 8 shall survive beyond the expiration or termination of this Agreement.
8.3 Injunctive Relief: The Parties acknowledge and agree that monetary damages may be inadequate to compensate for a breach of the provisions contained in this Section 8 or other confidentiality provisions of this Agreement. In the event of such breach, the injured Party shall be entitled to seek injunctive relief (without the need to post bond) and any and all other remedies available at Law or in equity. This Section 8.3 in no way limits the liability or damages that may be assessed against a Party in the event of a breach by the other Party of any of the provisions of this Section 8.
8.4 Residuals: Notwithstanding anything in this Section 8 to the contrary, subject to any applicable statutory intellectual property rights applicable to patents, trademarks or copyrights, either Party may use “Residuals” for any purpose, including without limitation, for use in development, manufacture, promotion, sale and maintenance of its products and services; provided, however, that this right to Residuals does not represent a license under any patents, copyrights or trademarks of the Disclosing Party. The term “Residuals” means any information that is retained in the unaided memories of the Receiving Party’s employees who have had access to the Disclosing Party’s Confidential Information pursuant to the terms of this Agreement.
9. WARRANTIES.
9.1 Authority/No Conflict: ABCO represents and warrants that (a) it has the power and authority to enter into and perform its obligations under this Agreement without conflict with, default under, or violation of any Law, regulation, or agreement binding upon it, and (b) this Agreement has been duly authorized by all necessary organizational action, and duly and validly executed and delivered by it, and constitutes its legally valid and binding obligation, enforceable in accordance with its terms.
9.2 Services: ABCO represents, warrants and covenants that the Services provided under this Agreement will be performed in a professional and workmanlike manner.
9.3 Compliance with Laws/Approvals: Each of ABCO and Evolent shall comply in all material respects with all Laws and regulations applicable to ABCO or Evolent, as applicable, in performing its obligations under this Agreement. To the extent applicable, ABCO shall be responsible for obtaining all necessary permits, licenses, and consents, including governmental approvals, required of ABCO and its contractors in connection with the performance of its obligations under this Agreement, and Evolent shall be responsible for obtaining all necessary permits, licenses, and consents, including governmental approvals, required of Evolent and its contractors in connection with the performance of its obligations under this Agreement.
9.4 Limitations of Warranty: EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, ABCO MAKES NO OTHER WARRANTY OR REPRESENTATION, ORAL, WRITTEN, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE SERVICES, INCLUDING WITHOUT LIMITATION, THEIR QUALITY, PERFORMANCE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, UNINTERRUPTED OR ERROR-FREE OPERATION OR OTHERWISE HEREUNDER. The disclaimer of warranties and limitations set forth in this Agreement constitute an essential part of this Agreement.
10. INDEMNIFICATION.
10.1 IP Indemnification: ABCO shall defend, indemnify and hold harmless Evolent and its Affiliates (other than ABCO), customers, and their respective officers, directors and employees from and against any Losses resulting from a claim that the Services provided by ABCO under this Agreement infringes or misappropriates a third party’s intellectual property rights. ABCO shall also use commercially reasonable efforts to modify the allegedly infringing Services to make it non-infringing, procure a license from the third party claiming infringement to permit Evolent to continue to use the Services, or provide Evolent with functionally equivalent and non-infringing Services. THIS SECTION 10.1 SETS FORTH ABCO’S SOLE AND EXCLUSIVE LIABILITY, AND EVOLENT’S SOLE AND EXCLUSIVE REMEDY, FOR ALLEGATIONS OR CLAIMS OF INFRINGEMENT OF THIRD PARTY RIGHTS OF ANY KIND ASSERTED AGAINST EVOLENT, ITS AFFILIATES (OTHER THAN ABCO), CUSTOMERS AND THEIR RESPECTIVE OFFICERS, DIRECTORS AND EMPLOYEES. ABCO shall not be obligated to indemnify Evolent, its Affiliates, customers, and their respective officers, directors and employees for infringement or misappropriation claims to the extent such claims arise out of use by Evolent or its customers of any of the Services in a manner other than as contemplated by the Parties under this Agreement.
10.2 ABCO’s Indemnification: ABCO hereby agrees to indemnify, defend, and hold Evolent and its Affiliates (other than ABCO), and all of their respective directors, officers, members, managers, partners, employees, agents, successors and assigns, harmless from and against any Losses arising from or related to: (a) the material breach of this Agreement, including any or all SOWs, by ABCO or its personnel (including contractors); (b) breach of any of ABCO’s representations, warranties, and covenants in this Agreement; or (c) negligence or willful misconduct by ABCO or its personnel (including contractors).
10.3 Evolent’s Indemnification: Evolent hereby agrees to indemnify, defend, and hold ABCO and its Affiliates (other than Evolent), and all of their respective directors, officers, members, managers, partners, employees, agents, successors and assigns, harmless from and against any Losses arising from or related to: (a) the material breach of this Agreement, including any or all SOWS, by Evolent or its personnel (including contractors); (b) breach of any of Evolent’s representations, warranties and covenants in this Agreement; or (c) negligence or willful misconduct by Evolent or its personnel (including contractors).
10.4 Indemnification Procedure:
10.4.1 Notice of Claim. Any Party seeking indemnification hereunder (the “Indemnitee”) shall notify the Party liable for such indemnification (the “Indemnitor”) in writing of any event, omission or occurrence that the Indemnitee has determined has given or could give rise to Losses that are indemnifiable hereunder (such written notice being hereinafter referred to as a “Notice of Claims”). Such Notice of Claims shall be given promptly after the Indemnitee becomes aware of its own claim or that of a third party; provided that the failure of any Indemnitee to give notice as provided in this Section 10.4.1 shall not relieve the Indemnitor of its obligations under this Section 10. A Notice of Claims shall specify in reasonable detail the nature and any particulars of the event, omission, or occurrence giving rise to a right of indemnification. The Indemnitor shall satisfy its obligations hereunder, as the case may be, within thirty (30) days of its receipt of a Notice of Claims.
10.4.2 Process. With respect to any third party claim, demand, suit, action, or proceeding that is the subject of a Notice of Claim, the Indemnitor shall, in good faith and at its own expense, defend, contest, or otherwise protect against any such claim, demand, suit, action, or proceeding with legal counsel of its own selection (and reasonably acceptable to the Indemnitee). The Indemnitee shall have the right, but not the obligation, to participate, at its own expense, in the defense thereof through counsel of its own choice and shall have the right, but not the obligation, to assert any and all cross claims or counterclaims it may have. So long as the Indemnitor is defending in good faith any such third party claim, demand, suit, action or proceeding, the Indemnitee shall at all times cooperate, at its own expense, in all reasonable ways with, make its relevant files and records available for inspection and copying by, and make its employees available or otherwise render reasonable assistance to, the Indemnitor. In the event that the Indemnitor fails to timely defend, contest or otherwise protect against any such third party claim, demand, suit, action, or proceeding, the Indemnitee shall have the right, but not the obligation, to defend, contest, assert cross claims or counterclaims, or otherwise protect against, the same and may make any compromise or settlement thereof and be entitled to all amounts paid as a result of such third party claim, demand, suit, or action or any compromise or settlement thereof. The Indemnitor will not consent to the entry of any judgment or enter into any settlement with respect to any such third party claim, demand, suit, action or proceeding without the prior written consent of the Indemnitee, which will not be unreasonably withheld, and provided that no settlement shall require the Indemnitee to admit liability, or perform or become subject to additional obligations thereunder.
11. LIMITS OF LIABILITY. EXCEPT WITH RESPECT TO OR BREACH BY EITHER PARTY OF THE OTHER PARTY’S CONFIDENTIAL INFORMATION UNDER SECTION 8,
NEITHER EVOLENT NOR ABCO SHALL BE LIABLE FOR, NOR WILL THE MEASURE OF DAMAGES INCLUDE, ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OR AMOUNTS INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF INCOME, PROFITS, OR SAVINGS, LOSS OF DATA, OR COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES, ARISING OUT OF OR RELATING TO ITS PERFORMANCE UNDER THIS AGREEMENT UNDER ANY CAUSE OF ACTION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL EITHER PARTY’S LIABILITY EXCEED THE AMOUNT OF REVENUE ACTUALLY RECEIVED BY ABCO IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO THE CLAIM.
12. TERMINATION.
12.1 Termination for Cause: Either Party shall have the right to terminate this Agreement in the event the other Party materially violates a material provision of this Agreement and such violation is not cured or cannot be cured within thirty (30) days after written notice of such material violation.
12.2 Survival: The rights and obligations contained in Sections 1, 5 (with respect to Evolent’s payment obligations that may extend beyond the Term), 6.2, 6.3, 8, 9.4, 10, 11, 12.2, 13 and 14 shall survive any termination or expiration of this Agreement.
13. ESCALATION; DISPUTE RESOLUTION. Subject to the terms of Section 13.5, the procedures of this Section 13 will control the resolution of any and all disputes between the Parties including, without limitation, any dispute relating to disputed monies owing or breach of warranty (each, a “Dispute”). The Parties will seek to resolve each Dispute as follows:
13.1 First Level Performance Review: Each Party’s Relationship Manager will meet as often as will reasonably be required by either Party to review the performance of either Party under this Agreement and to resolve the Dispute. If these representatives are unable to resolve the Dispute within ten (10) business days after the initial request for a meeting, then the Parties will submit the Dispute to an executive level performance review as provided in Section 13.2 below.
13.2 Executive Level Performance Review: Face-to-face negotiations will be conducted by a senior executive officer of each Party (or such other executive as a Party may designate). If these representatives are unable to resolve the Dispute within five (5) business days after the Parties have commenced negotiations or ten (10) business days have passed since the initial request for a meeting at this level, then the Parties may jointly engage the services of a third-party mediator.
13.3 Arbitration: If the Parties are unable to resolve the Dispute through the alternative mechanisms described above, the Parties shall submit the Dispute for resolution through binding arbitration, except as otherwise provided in Section 13.5. The Parties agree and consent to such arbitration proceeding taking place in Wilmington, Delaware, and in accordance with the Commercial Arbitration Rules of the American Arbitration Association, except that discovery may be had in accordance with the Federal Rules of Civil Procedure. The Parties shall be permitted at least six (6) months from the date of the filing of the Arbitration Demand to conduct discovery. The arbitration proceedings shall be conducted by a panel of three (3) impartial arbitrators, with each Party selecting one (1) of the impartial arbitrators and those two (2) arbitrators then selecting the third impartial arbitrator, all such selections to be made through the procedures of the American Arbitration Association. At least one (1) arbitrator must be an attorney licensed under the Laws of Pennsylvania and at least one (1) arbitrator (may be the same Person as the Pennsylvania attorney) must have direct and substantial experience in the industry pertinent to the subject matter of the Dispute. Judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof; provided, however, in rendering its decision, the arbitrators shall be bound by the Laws of the Commonwealth of Pennsylvania (without regard to its conflicts of laws provisions) and by the terms and conditions of this Agreement setting forth the rights and responsibilities of the Parties. The decision of the arbitration panel shall be accompanied by a written opinion setting forth the factual and legal bases for the award. The arbitrators shall issue such written decision within thirty (30) days of the conclusion of the arbitration hearing. The arbitrators appointed hereunder shall not have the power to award punitive damages. Service of a petition to confirm the arbitration award may be made by United States mail, postage prepaid, or by any regularly conducted commercial express mail service, to the attorney for the Party or, if not so represented, to the Party at the address set forth herein, or to the Party’s last known business address. The prevailing Party in any action related to or arising under this Agreement shall be entitled to reasonable attorneys’ fees and costs.
13.3.1 For any Dispute in which the amount in controversy is at least One Million Dollars ($1,000,000), the following additional procedures apply:
(a) a certified court reporter shall transcribe the arbitration hearings; The Parties initially split the cost of the reporter, but such costs shall ultimately be awarded to the Party prevailing in the arbitration proceeding; and
(b) either Party may take an appeal from the final decision by making a written demand within twenty (20) days of the award.
13.3.2 Any such appeal shall be conducted as follows:
(a) such appeals are limited to issues of Law (i.e., the original award (1) contains material errors of Law such that the original award is not founded on any appropriate legal basis; (2) is based on factual findings clearly unsupported by the record; or (3) is subject to one or more grounds set forth in Section 10 of the Federal Arbitration Act or 42 Pa. C.S.A. §7341 for vacating an award);
(b) the Person hearing the appeal shall be a former federal judge mutually agreed to by the Parties or selected through the procedures of the American Arbitration Association. The former judge shall act as the appellate arbitrator;
(c) the submissions on appeal are limited to (1) the record of the arbitration, (2) a 30-page brief by the appellant, (3) a 30-page brief by the appellee and (4) a 10-page response by the appellant. The appellate arbitrator will set the dates for submission of the briefs. Oral argument may be heard at the discretion of the appellate arbitrator;
(d) the appellate arbitrator shall render a written decision within sixty (60) days of the final submission;
(e) during the pendency of the arbitration appeal, the Parties agree to suspend any running of the time to seek enforcement of the original award. The Parties also agree to waive any appeal to state or federal courts based on the grounds set forth in Section 10 of the Federal Arbitration Act for vacating an award and 42 Pa. C.S.A. § 7341;
(f) the appellate arbitrator must award costs and attorneys’ fees to the prevailing Party; and
(g) the decision of the appellate arbitrator shall be final.
13.4 Continued Performance: Each Party acknowledges that the timely and complete performance of its obligations pursuant to this Agreement is critical to the business and operations of the other Party. Accordingly, in the event of a Dispute, each Party shall continue to so perform all of its obligations under this Agreement, in good faith during the resolution of such Dispute unless and until (a) authority to stop doing so is granted or conferred by a court of competent jurisdiction or (b) this Agreement is terminated in accordance with the provisions hereof.
13.5 Equitable Relief: Notwithstanding anything contained in this Agreement to the contrary, the Parties will be entitled to seek injunctive relief, specific performance or other equitable relief whenever the facts or circumstances would permit a Party to seek equitable relief in a court of competent jurisdiction. Without limiting the generality of the foregoing, (a) Evolent agrees that there would be irreparable harm to ABCO in the event of any such breach by Evolent of Section 6.2 and ABCO shall be entitled to (i) injunctive relief to prevent breaches of Section 6.2, (ii) specific performance of this Agreement, and (iii) any other remedies provided by Law or equity, including without limitation an award for damages, and (b) ABCO agrees that there would be irreparable harm to Evolent in the event of any such breach by ABCO of Section 6.1.1, and Evolent shall be entitled to (i) injunctive relief to prevent breaches of Section 6.1.1, (ii) specific performance of this Agreement, and (iii) any other remedies provided by Law or equity, including without limitation an award for damages.
14. MISCELLANEOUS PROVISIONS.
14.1 Good Faith and Mutual Agreement: Unless otherwise expressly stated in such provision, if a provision in this Agreement calls for the consent of a Party or the mutual agreement of the Parties, the Parties agree that each will act in good faith, will not unreasonably withhold their consent and that deference shall be given to the other Party’s reasonable business requirements, and the requirements of the Parties’ respective regulators and internal controls procedures.
14.2 Independent Contractor: The relationship of ABCO to Evolent shall at all times be that of an independent contractor. Nothing in this Agreement shall be construed to create any partnership, association, joint venture, or employment between the Parties. Each Party shall have the sole and exclusive control over the labor and employee relations policies and policies relating to wages, hours, working conditions, benefits, or other conditions of its personnel and shall be responsible and liable for the acts and omissions of its employees, agents and contractors.
14.3 Assignability: Evolent has entered into this Agreement because of the expertise of ABCO, and ABCO understands that the obligations of ABCO are personal to ABCO and may not be assigned to any other company, partnership or individual without the express written consent of Evolent; provided, however, that no consent shall be required if an assignment is made in connection with a sale of all or substantially all of ABCO’s assets or stock, or in connection with a merger or Change of Control. Evolent may assign this Agreement (including the licenses granted pursuant to this Agreement) to any Affiliate of Evolent as part of an internal reorganization or in connection with a sale of substantially all of its assets or stock, or in connection with a merger or Change of Control.
14.4 Governing Law and Jurisdiction: This Agreement shall be governed by and construed and enforced in accordance with the Laws of the Commonwealth of Pennsylvania, without regard to that state or any other state’s conflicts of law rules. Each Party irrevocably consents to the personal jurisdiction of the state and federal courts located in Wilmington, Delaware for any suit or action arising from or related to this Agreement.
14.5 Force Majeure: Neither Party shall be deemed in default of this Agreement to the extent that performance of their obligations or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, act of government, or any other cause beyond the control of such Party, provided that such Party gives the other Party written notice thereof promptly and, in any event, within fifteen (15) days of discovery thereof, and uses its commercially reasonable efforts to cure any such breach.
14.6 Entire Agreement: This Agreement and its exhibits, schedules, and attachments constitute the entire understanding between the Parties with respect to the subject matter hereof and supersede all prior written or oral representations with respect to the subject matter hereof. This Agreement may not be modified, amended, or otherwise changed in any manner except by a written instrument executed by the Party against whom enforcement is sought.
14.7 Cumulative Remedies: Except as expressly provided in this Agreement, (a) remedies for breach are cumulative and may be exercised separately or concurrently, (b) the exercise of one remedy is not an election of that remedy to the exclusion of others, and (c) the provision for any remedy in this Agreement shall not affect remedies otherwise available at Law or in equity.
14.8 No Third Party Beneficiaries: The Parties do not intend that this Agreement creates any right or cause of action in or on behalf of any Person other than Evolent and ABCO.
14.9 Headings: Section headings have been included in this Agreement merely for convenience of reference. They are not to be considered part of, or to be used in interpreting this Agreement.
14.10 Binding Effect: The covenants and conditions contained herein will apply to and bind the successors, representatives, and permitted assigns of the Parties.
14.11 Expenses: Each Party shall be responsible for its own legal, accounting and other transaction costs relating to the transactions contemplated in this Agreement.
14.12 Notices: All notices required to be given hereunder shall be in writing and given hereunder, as elected by the Party giving notice, as follows: (a) by personal delivery, (b) sent by overnight courier with confirmation of receipt, or (c) dispatched by certified or registered mail, return receipt requested, postage prepaid, addressed to the Parties as follows.
If to Evolent: Evolent, Inc.
800 N. Glebe Road, Suite 500
Arlington, VA 22203
Attention: President
Morgan Lewis & Bockius, LLP
225 Franklin Street
Boston, MA 02110
Attention: Mark B. Stein, Esq.
Fax No.: (617) 341-7701
If to ABCO: The Advisory Board Company
2445 M St. NW
Washington, DC 20037
Attention: General Counsel
Notice shall be deemed given (a) on the date of receipt if delivered personally; (b) on the business day following delivery of such notice to the overnight courier; or (c) three (3) business days after deposit in the mail in accordance with the foregoing. Either Party may change the address to which to send notices by notifying the other Party of such change of address in writing in accordance with the foregoing.
14.13 Press Releases: No press releases or other public announcements concerning the transactions contemplated by this Agreement shall be made by ABCO or Evolent without the prior written consent of both Parties; provided, however, that nothing herein shall prevent a Party from supplying such information or making statements as required by governmental authority or in order for a Party to satisfy its legal obligations (prompt notice of which shall in any such case be given to the other Party).
14.14 Severability: Any terms or provisions of this Agreement that shall prove to be invalid, void or illegal shall in no way affect, impair, or invalidate any other term or provision herein and such remaining terms and provisions shall remain in full force and effect provided that its general purposes are still reasonably capable of being effected. All such terms or provisions which are determined by a court of competent jurisdiction or other dispute resolution proceeding to be invalid, void or illegal shall be construed and limited so as to allow the maximum effect permissible by Law.
14.15 Waiver: The waiver by either Party to this Agreement of any one or more defaults, if any, on the part of the other, shall not be construed to operate as a waiver of any other or future defaults under the same or different terms, conditions or covenants contained in this Agreement.
IN WITNESS WHEREOF, the Parties have executed this Agreement effective as of the date first written above.
THE ADVISORY BOARD COMPANY EVOLENT HEALTH, INC.
/s/ Evan Farber
By: Evan Farber By:
Its: General Counsel Its:
[Signature Page to Amended and Restated Services, Reseller and Non-Competition Agreement]
IN WITNESS WHEREOF, the Parties have executed this Agreement effective as of the date first written above.
THE ADVISORY BOARD COMPANY EVOLENT HEALTH, INC.
/s/ Frank Williams
By: By: Frank Williams
Its: Its: CEO
| Entailment |
622_nda-20 | 622_nda-20_0 | Q: Receiving Party may retain some Confidential Information even after the return or destruction of Confidential Information.
Text: Exhibit 10.16
AMENDED AND RESTATED
SERVICES, RESELLER AND NON-COMPETITION AGREEMENT
THIS AMENDED AND RESTATED SERVICES, RESELLER AND NON-COMPETITION AGREEMENT (this “Agreement”) is made and entered into effective as of June 27, 2013 (the “Effective Date”) by and between The Advisory Board Company, a Delaware corporation (“ABCO”), and Evolent Health, Inc. (f/k/a VPHealth, Inc.), a Delaware corporation (“Evolent”), (each, a “Party”, and collectively, the “Parties”).
RECITALS
WHEREAS, ABCO and Evolent entered into a Services, Reseller and Non-Competition Agreement (the “Original Agreement”), effective as of August 31, 2011 (the “Original Effective Date”);
WHEREAS, since entering into the Original Agreement, Evolent and ABCO have continued to explore ways to improve the efficiency and implementation of their relationship; and
WHEREAS, as a result of the foregoing efforts, the Parties have agreed to amend and restate the Original Agreement as set forth in this Agreement.
NOW, THEREFORE, in consideration of the above recitals, the terms and conditions hereinafter set forth, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto agree as follows:
1. DEFINITIONS. For purposes of this Agreement:
1.1 “ABCO Restricted Products and Services” means (a) care management services including, but not limited to, traditional disease management services, direct patient outreach and other service-based care management offerings (e.g., readmissions management teams, nurse call centers, on-site care management teams); (b) care management workflow software designed for and used by provider-owned payor organizations or other entities intending to conduct active care management campaigns targeted at managing population health/longitudinal outcomes (i.e, solutions that are the same as or substantially similar to (i.e. functionality that is redundant in substantial and material respects with) HealthPlaNet); (c) services primarily intended to support cost reduction and benefit changes for health system employees; (d) consulting services comparable and competitive with blueprint consulting services offered by Evolent as of the Effective Date (“Blueprint Services”), (e) Exclusive TPA Services or (f) Crimson Care Registry products. For the avoidance of doubt, Restricted Products and Services does not include behavioral health-related services or software (e.g., Askesis Development Group software), services similar to those offered by UPMC WorkPartners (e.g., “Take-a-Healthy-Step” or similar health and wellness programs, occupational medicine, on-site clinic implementation and administration, employee assistance services, absence management or workers’ compensation services), or software or solutions similar to those offered by EBenefits Solutions, LLC.
1.2 “Active Sales Process”, with respect to any Person as of any date on which Evolent proposes to add such Person to the list of Evolent Top Prospects, means such Person (a) is not an Evolent Client as of such date and (b) either (i) has purchased ABCO Restricted Products and Services from ABCO prior to such date or (b) was engaged in active discussions with ABCO about acquiring ABCO Restricted Products and Services (including, but not limited to, a review of the applicable offering of ABCO Restricted Products and Services) as of such date.
1.3 “Affiliate” means any Person which Controls, is Controlled by, or is in common Control with, another Person.
1.4 “Business Plan” has the meaning set forth in that certain Intellectual Property License and Data Access Agreement between the Parties.
1.5 “Change of Control” with respect to any entity means a transaction or series of related transactions in which a Person, or a group of related Persons, acquires from stockholders of the subject entity, the entity’s shares representing more than fifty percent (50%) of the outstanding voting power of such entity.
1.6 “Confidential Information” means any and all technical and non-technical information, whether conveyed verbally, in writing, electronically or by any other means, including, but not limited to, trade secrets, source code, technology, know-how and proprietary information, techniques, plans or any other information relating to any research project, analysis, work in process, future development, scientific, engineering, marketing or business plans or financial, contractual or personnel matters relating to either Party or its present or future products, services, sales, suppliers, identity of and information relating to customers and prospective customers, customer or prospect list, prospective employees, investors or affiliates or other proprietary information disclosed or otherwise supplied in confidence by either Party to the other, to the extent that such information is provided pursuant to this Agreement by one Party to the other Party and is marked “confidential” or “proprietary” or that should be reasonably understood by the Receiving Party (based on the nature of the information or the context in which the information is disclosed) should be considered confidential. Confidential Information will not include information to the extent that: (a) such information is or becomes publicly available other than through any act or omission of either Party in breach of this Agreement; (b) such information was received by the Receiving Party, other than under an obligation of confidentiality, from a third party who had no obligation of confidentiality to the other Party; (c) such information was in the possession of the Receiving Party at the time of the disclosure or was independently developed by the Receiving Party, as reflected by the Receiving Party’s internal, written and dated documentation; or (d) an applicable regulation, court order or other legal process requires the disclosure of such information, provided that prior to such disclosure the Disclosing Party will give notice to the other Party so that the other Party may take reasonable steps to oppose or limit such disclosure, so that the Disclosing Party does not disclose any more information than necessary to comply with such legal process. The burden of proof that Confidential Information falls into any one of the above exemptions will be borne by the Party claiming such exemption with documentation or other credible evidence.
1.7 “Control” as used with respect to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities, by agreement or otherwise.
1.8 “Evolent Clients” means entities under a current contract with Evolent for an implementation and/or long-term services contract. 1.9 “Evolent Top Prospects” means, as of any date, up to twenty (20) potential Evolent customers in the Evolent sales pipeline identified by Evolent that are not Evolent Clients as of such date, and (a) are engaged in active discussions with Evolent regarding purchasing Evolent products and services and/or (b) are under a current contract with Evolent for Blueprint Services or other services that do not constitute implementation or long-term services; provided, however, that (i) the list of such potential Evolent customers may be updated by Evolent on a quarterly basis, and ABCO shall have the opportunity upon receipt of each such quarterly update to notify Evolent if any of the Persons added to such list are in an Active Sales Process with ABCO and shall therefore be removed from such list, and (ii) no Person shall remain on the list of Evolent Top Prospects for more than (x) twelve (12) consecutive months, in the case of potential Evolent customers without a signed agreement with Evolent, or (y) twenty-four (24) consecutive months, in the case of potential Evolent Clients that signed an agreement for Blueprint Services with Evolent before or within twelve (12) months of being added to the list of Evolent Top Prospects.
1.10 “Exclusive TPA Services” means certain services as set forth on Schedule 1 of the UPMC Reseller Agreement (as in effect on the Effective Date), to the extent that UPMC Health Plan, Inc., a Pennsylvania nonprofit corporation (“UPMC”), has the exclusive right to provide such services to Evolent, for resale by Evolent to its customers.
1.11 “Disclosing Party” means a Party that provides Confidential Information to the other Party, or the other Party’s Affiliates.
1.12 “Governmental Authority” means any federal, state, municipal, local, territorial, or other governmental department, regulatory authority, judicial or administrative body, whether domestic, foreign or international.
1.13 “Law” means all international, federal, country, state, provincial, local and other laws, rules and regulations, declaration, decree, directive, legislative enactment, order, code, ordinance, regulation, rule or other binding restriction of or by any Governmental Authority, as the same are promulgated, supplemented or amended from time to time.
1.14 “Loss” individually, and collectively, “Losses” means all claims, liabilities, obligations, losses, costs, expenses (including, without limitation, legal, accounting and similar expenses), litigation, proceedings, fines, taxes, levies, imposts, duties, deficiencies, assessments, charges, penalties, allegations, demands, damages (including, but not limited to, actual, punitive or consequential, foreseen or unforeseen, known or unknown, fixed or contingent, and matured or unmatured), civil and criminal violations of Law, settlements and judgments of any kind or nature whatsoever.
1.15 “Person” means any individual, corporation, partnership, firm, joint venture, association, limited liability company, limited liability partnership, joint-stock company, trust, joint venture, unincorporated organization, governmental, judicial or regulatory body, business unit, division or any other business entity, organization or Governmental Authority.
1.16 “Receiving Party” means a Party that receives Confidential Information from the other Party or the other Party’s Affiliates.
1.17 “Statement of Work” or “SOW” means an agreement by and between ABCO and Evolent that contains the detailed description of services, scope, specifications, pricing, implementation plan, timetables, milestones, and other terms and conditions for each procurement of services, as applicable.
1.18 “UPMC Reseller Agreement” means that certain Second Amended and Restated Reseller, Services and Non-Competition Agreement between UPMC and Evolent dated as of [the Effective Date].
2. SERVICES TO BE PROVIDED BY ABCO.
2.1 General Services:
2.1.1 Minimum Purchase. The Parties hereby acknowledge and agree that Evolent has purchased from ABCO a minimum of Two Hundred Thousand Dollars ($200,000) of services (as described in Section 2.2.1) (the “Original Minimum Purchase”) for delivery between the Original Effective Date and the first anniversary thereof.
2.1.2 Statements of Work. The specific description, price, service levels (if applicable) and other project, service, and/or customer-specific terms for a particular service that may be provided by ABCO to Evolent (each, a “Service”, and collectively, the “Services”) shall be set forth in a Statement of Work that will be created on a project by project basis.
2.2 Right of First Offer and Process for Invoking:
2.2.1 Applicable Services. Throughout the Term, ABCO shall have the right of first offer to provide the following services to Evolent and Evolent’s customers:
(a) Physician practice management consulting and other physician practice management services;
(b) Physician incentive design services;
(c) Medical home development consulting services; and
(d) Performance analytics shared with physicians with the intent to improve outcomes.
2.2.2 Process for Exercising Right of First Offer. Evolent shall notify ABCO in writing in the event Evolent desires to receive any of the above services (“First Offer Services”). ABCO shall have a period of thirty (30) days (“First Offer Services Evaluation Period”) within which to conduct its evaluation and diligence with respect to providing such First Offer Services. Evolent shall cooperate with ABCO and provide reasonable assistance and information to ABCO to enable ABCO to conduct its evaluation. Within five (5) business days after the expiration of such First Offer Services Evaluation Period, ABCO shall notify Evolent in writing whether or not it wishes to provide such services to Evolent. If ABCO elects to provide such First Offer Services, Evolent agrees to engage in good faith negotiations with ABCO, on an exclusive basis for a period of sixty (60) days, regarding the specific terms covering such First Offer Services.
2.3 Failure to Execute a Service Agreement for the VBC Innovation Center: The Parties acknowledge and agree that it was their intent as of the Original Effective Date to enter into a service agreement under which Evolent would engage ABCO to provide certain consulting, development and support services in connection with the creation, launch, implementation and ongoing support of a Value-Based Care Innovation Center (the “VBC Innovation Center”), in consideration for which Evolent would pay ABCO a fixed fee of Eight Hundred Thousand Dollars ($800,000) per year (“Fixed Fee”) for each of the first two (2) years of the term of such VBC Innovation Center service agreement. The Parties acknowledge and agree that, notwithstanding the fact that they negotiated with diligence and in good faith the specific terms and conditions of such service agreement, the Parties were unable to reach an agreement with respect to the VBC Innovation Center. Accordingly, the Original Minimum Purchase is increased to One Million Two Hundred Thousand Dollars ($1,200,000) (the “Minimum Purchase”) as follows: (a) between the Original Effective Date and the second anniversary thereof, Evolent shall have purchased from ABCO a minimum of Seven Hundred Thousand Dollars ($700,000) of services for delivery on or prior to such second anniversary of the Original Effective Date), and (b) inclusive of the purchases described in clause (a), between the Original Effective Date and the third anniversary thereof, Evolent shall have purchased from ABCO a minimum of One Million Two Hundred Thousand Dollars ($1,200,000) of services for delivery on or prior to such third anniversary of the Original Effective Date); provided that, for purposes of this sentence, “services” shall include consulting, software, professional or analytic services provided from time to time by ABCO to Evolent (other than services in connection with the provision of any office space by or on behalf of ABCO to Evolent) or, pursuant to a joint written proposal by ABCO and Evolent, to any Evolent Client.
2.4 Reservation of Rights: For the avoidance of doubt, Evolent is not precluded from offering and providing services directly to its customers, subject (a) to (i.e., after ABCO has had the full opportunity to exercise) ABCO’s right of first offer to provide any First Offer Services in accordance with Section 2.2) and (b) to Evolent’s compliance with its non-competition obligations as set forth in Section 6.2.
2.5 Designation of Relationship Managers: In order to support the launch and ongoing success of the exclusive reseller relationship between ABCO and Evolent, each Party agrees to designate a senior level individual who will serve as the primary liaison and “go to” contact and relationship manager for such Party (each, a “Relationship Manager”). Each Party’s Relationship Manager’s role and responsibilities would include: (a) facilitating day-to-day communications between the Parties regarding customer-facing activities, such as marketing, promotional and sales activities and preparing and submitting bids, proposals, responses to requests for proposals, fee estimates, Statements of Work and project plans; (b) receiving and submitting requests between the Parties for information and/or assistance; (c) overseeing the efficient knowledge transfer and flow of information between the Parties; (d) facilitating communications between the appropriate individuals within Evolent and ABCO, with respect to product and service offering development; and (e) providing the first level of performance review or escalation in the event of a Dispute as provided in Section 13. The Relationship Managers will meet regularly, but no less frequently than monthly, as reasonably necessary, to maintain a good working relationship between the Parties. Each Party may change its Relationship Manager by giving the other Party reasonable notice as long as the change is implemented in a manner that does not cause any significant disruption to each Party’s business operations and business relationship.
3. FEES; PAYMENT TERMS; SHORTFALL.
3.1 Fees; Timing of Payments: Evolent shall pay ABCO the applicable fees for the Services performed by ABCO pursuant to a Statement of Work, as follows: (a) unless the Parties otherwise agree in writing, a deposit of 50% of the total fees for the particular project shall be paid upon signing of the Statement of Work; (b) ABCO will submit an invoice to Evolent for the balance upon completion of the work; and (c) Evolent shall pay ABCO for such invoiced amount within thirty (30) days after receipt of such invoice.
3.2 Minimum Purchase and Shortfall: Evolent agrees to pay ABCO the Minimum Purchase. If the aggregate amount of Services actually procured by Evolent from ABCO is not equal to or greater than (a) Seven Hundred Thousand Dollars ($700,000) of services for delivery on or prior to the second anniversary of the Original Effective Date or (b) inclusive of the purchase described in clause (a), the Minimum Purchase of services for delivery on or prior to the third anniversary of the Original Effective Date, Evolent shall pay ABCO the amount of the shortfall (i.e., the difference between Seven Hundred Thousand Dollars ($700,000) or the Minimum Purchase amount, as applicable, less the sum of: (a) the aggregate fees for the actual amount of Services procured; and (b) any Credits (as provided in the next sentence) (the “Shortfall”), if any, on or before August 31, 2013 or August 31, 2014, as applicable. In the event that ABCO refuses or fails, without reasonable cause, to provide any of the Services requested by Evolent (provided the scope of the Services requested is within the scope customarily provided by ABCO), the fees that would otherwise have been applicable had ABCO agreed to provide such Services would count as a “Credit”. As of the date hereof, no such Credits have accrued.
4. TERM AND RENEWAL. The initial term of this Agreement shall commence on the Effective Date and unless sooner terminated in accordance with the terms hereof, shall continue until August 31, 2016 (“Initial Term”). Thereafter, this Agreement shall automatically be renewed for another five-year term (“Renewal Term”) unless either Party elects to terminate this Agreement by providing the other Party with written notice of termination one hundred eighty (180) days prior to the expiration of the current term. (“Initial Term” and “Renewal Term” collectively, the “Term”).
5. REFERRAL FEES, SOLICITATION AND COMPETITION AND POST-CLOSING SERVICES.
5.1 Referral Fees:
5.1.1 During the Term, ABCO will pay Evolent a sales referral fee for any sale made by ABCO that resulted from a “net” new sale from a new customer that was not already in ABCO’s sales pipeline (i.e., a “warm lead”) or a then-current customer of ABCO generated directly by Evolent’s efforts and without any assistance from any ABCO employee or representative (including any Evolent employee that serves on the Board of Directors of ABCO), equal to 5% of the total ABCO revenue from the new customer during the initial twelve (12) months of services under the services agreement with such new customer.
5.1.2 During the Term, Evolent will pay ABCO a sales referral fee for any sale made by Evolent that resulted from a “net” new sale from a new customer that was not already in Evolent’s sales pipeline (i.e., a “warm lead”) or a then-current customer of Evolent generated directly by ABCO’s efforts and without any assistance from any Evolent employee or representative (including any ABCO employee that serves on the Board of Directors of Evolent), in accordance with the following terms:
(a) ABCO will receive a one-time referral fee for any “employee health” diagnostic, consulting or broker services provided by Evolent to a Covered Health System, equal to the lesser of $20,000 or 5% of the total Evolent revenue from the Covered Health System during the initial twelve (12) months of services under the service agreement with such Covered Health System.
(b) ABCO will receive $50,000 per year for three (3) years for each health system joining Evolent as an Employee Health Platform Customer. An “Employee Health Platform Customer” is defined as a health system purchasing diagnostic/consulting services and ongoing medical management/health plan services (i.e., care management, HealthPlaNet care management application, and the TPA platform, etc.).
(c) ABCO will receive $100,000 per year for three (3) years for a health system joining Evolent as a Platform Health Plan Customer. A “Platform Health Plan Customer” is defined as a health system purchasing ongoing medical management services, ongoing health plan outsourcing services (i.e., TPA) and health plan management services for purposes of a licensed insurance entity with at least fifty thousand (50,000) lives (beyond the employee population).
(d) With the exception of making the introduction (either through an email or an in-person meeting) (to generate the “warm lead”), ABCO would not be expected to perform any actual duties or incur actual cost to receive a referral fee.
(e) The annual referral fees for each referral would be capped at the lesser of (x) 5% of annual revenue generated by Evolent for the respective customer and (y) the $50,000 or $100,000 figures described above, as applicable.
6. SOLICITATION AND COMPETITION.
6.1 Scope:
6.1.1 Throughout the Term, ABCO agrees not to offer any ABCO Restricted Products and Services to (a) any Evolent Clients or (b) any Evolent Top Prospects; provided, however, that ABCO shall not be restricted from making any such offer to any Evolent Top Prospect or Evolent Client with whom ABCO was, at the time such Person was identified as an Evolent Top Prospect or became an Evolent Client, engaged in an Active Sales Process. The foregoing restrictions shall not apply in the event of a Change of Control of Evolent or in the event that ABCO ceases to be a shareholder of Evolent.
6.1.2 None of the foregoing would prohibit ABCO from:
(a) Marketing, offering, licensing or selling versions of any of its Crimson Population Risk Management products, or the successors to any such products, provided that such products, or the successors to any such products, are not the same as or substantially similar to (i.e., includes functionality that is redundant in substantial and material respects with) HealthPlaNet as it exists as of the Effective Date.
(b) Supporting employers with care management related best practices and research.
(c) Offering traditional “dedicated advisor” support in conjunction with ABCO’s traditional business intelligence offerings.
(d) Marketing, offering, licensing or selling its employer health product.
(e) Providing physician management consulting and other physician management services.
6.2 Restrictions Relating to Certain ABCO Products and Services: Evolent shall not, until the earlier of (x) ABCO’s ceasing to be a shareholder of Evolent or (y) the seventh (7 ) anniversary of the date of this Agreement, promote, market, provide, offer or sellth (a) unbundled software applications, software tools or other similar technologies (including, without limitation, software as a service, analytics technology or data services) (each, a “Technology Solution”), (b) consulting services that are not intended to lead to or be a part of a Blueprint Services engagement, implementation contract and/or long-term services contract, or (c) any best practices membership programs or unbundled or bundled physician practice management and other physician practice management consulting services, in each case referred to in this clause (c) that are substantially similar to, or that are competitive with, ABCO’s best practices membership programs or physician practice management or other physician practice management consulting services that are offered by ABCO as of the date first written above. For the avoidance of doubt, “unbundled” means on a stand-alone basis, instead of “bundled”, which contemplates that the Technology Solution is both (i) offered as part of a “packaged”, integrated offering, in conjunction with other Evolent products or services that are not Technology Solutions (and not only services that constitute customary software, data and end user support-related services), such as the Exclusive TPA Services, and (ii) incidental to the provision of such other Evolent products or services. Notwithstanding any other provision hereof, the foregoing restrictions in this Section 6.2 shall survive a Change of Control of Evolent for seven (7) years from the date of this Agreement; provided, however, that prior to the seventh (7 ) anniversary of the date of thisth Agreement, the acquiring party in a Change of Control of Evolent shall be not be subject to the foregoing restrictions with respect to any Technology Solutions or consulting services, in each case, that are unrelated to the Evolent assets acquired.
6.3 Non-Solicitation or Hiring: During the Term and for a period of eighteen (18) months thereafter, Evolent shall not solicit or hire any of ABCO’s employees without ABCO’s prior written consent.
7. EXCLUSIVE RESELLER RIGHTS FOR FUTURE PRODUCTS.
In the event that Evolent creates a discrete or segregable product or service that can be sold to healthcare providers, Evolent shall notify ABCO in writing of such new offerings (“New Products”). ABCO shall have a period of ninety (90) days (“New Products Evaluation Period”) within which to conduct its evaluation and diligence with respect to providing such New Products. Evolent shall cooperate with ABCO and provide reasonable assistance and information to ABCO to enable ABCO to conduct its evaluation. Within five (5) business days after the expiration of such New Products Evaluation Period, ABCO shall notify Evolent in writing whether or not it wishes to have the right to resell such New Products. If ABCO elects to resell such New Products, Evolent and ABCO agree to negotiate in good faith on an exclusive basis for one hundred twenty (120) days the terms of a reseller agreement, under which ABCO would be the exclusive distributor (in addition to Evolent) of such New Products.
8. CONFIDENTIALITY.
8.1 Confidential Information: ABCO acknowledges that in connection with its rights and obligations under this Agreement it may gain access to the Confidential Information of Evolent and its customers and Affiliates. Evolent acknowledges that in connection with its rights and obligations under this Agreement, it may gain access to the Confidential Information of ABCO and its customers and Affiliates.
8.2 Non-Disclosure: The Receiving Party may disclose the Disclosing Party’s Confidential Information strictly on a need-to-know basis to only those personnel, including employees of the Receiving Party’s contractors, who require access to the Disclosing Party’s Confidential Information in order to perform or derive benefit from the Services or otherwise meet its obligations under this Agreement. The Receiving Party agrees: (a) to hold the Disclosing Party’s Confidential Information in strict confidence, using the same degree (but no less than a reasonable degree) of care and protection that it exercises with its own Confidential Information of a similar nature; (b) not to directly or indirectly disclose or otherwise make available any Confidential Information of the Disclosing Party to a third party; and (c) not to copy or use the Disclosing Party’s Confidential Information for any purpose other than as necessary to fulfill the Receiving Party’s obligations or exercise its rights under this Agreement. Each Receiving Party is responsible for ensuring that its employees, agents and contractors strictly abide by the requirements of confidentiality and restrictions on use as provided in this Section 8.2 and shall be liable to the Disclosing Party for any acts or omissions of its employees, agents and independent contractors relating to the Disclosing Party’s Confidential Information. The Receiving Party is allowed to disclose Confidential Information of the Disclosing Party to the extent required by Law or by the order or a court of similar judicial or administrative body with jurisdiction, provided that the Receiving Party notifies the Disclosing Party of such required disclosure promptly and in writing and cooperates with the Disclosing Party, at the Disclosing Party’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure. The provisions of this Section 8 shall survive beyond the expiration or termination of this Agreement.
8.3 Injunctive Relief: The Parties acknowledge and agree that monetary damages may be inadequate to compensate for a breach of the provisions contained in this Section 8 or other confidentiality provisions of this Agreement. In the event of such breach, the injured Party shall be entitled to seek injunctive relief (without the need to post bond) and any and all other remedies available at Law or in equity. This Section 8.3 in no way limits the liability or damages that may be assessed against a Party in the event of a breach by the other Party of any of the provisions of this Section 8.
8.4 Residuals: Notwithstanding anything in this Section 8 to the contrary, subject to any applicable statutory intellectual property rights applicable to patents, trademarks or copyrights, either Party may use “Residuals” for any purpose, including without limitation, for use in development, manufacture, promotion, sale and maintenance of its products and services; provided, however, that this right to Residuals does not represent a license under any patents, copyrights or trademarks of the Disclosing Party. The term “Residuals” means any information that is retained in the unaided memories of the Receiving Party’s employees who have had access to the Disclosing Party’s Confidential Information pursuant to the terms of this Agreement.
9. WARRANTIES.
9.1 Authority/No Conflict: ABCO represents and warrants that (a) it has the power and authority to enter into and perform its obligations under this Agreement without conflict with, default under, or violation of any Law, regulation, or agreement binding upon it, and (b) this Agreement has been duly authorized by all necessary organizational action, and duly and validly executed and delivered by it, and constitutes its legally valid and binding obligation, enforceable in accordance with its terms.
9.2 Services: ABCO represents, warrants and covenants that the Services provided under this Agreement will be performed in a professional and workmanlike manner.
9.3 Compliance with Laws/Approvals: Each of ABCO and Evolent shall comply in all material respects with all Laws and regulations applicable to ABCO or Evolent, as applicable, in performing its obligations under this Agreement. To the extent applicable, ABCO shall be responsible for obtaining all necessary permits, licenses, and consents, including governmental approvals, required of ABCO and its contractors in connection with the performance of its obligations under this Agreement, and Evolent shall be responsible for obtaining all necessary permits, licenses, and consents, including governmental approvals, required of Evolent and its contractors in connection with the performance of its obligations under this Agreement.
9.4 Limitations of Warranty: EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, ABCO MAKES NO OTHER WARRANTY OR REPRESENTATION, ORAL, WRITTEN, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE SERVICES, INCLUDING WITHOUT LIMITATION, THEIR QUALITY, PERFORMANCE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, UNINTERRUPTED OR ERROR-FREE OPERATION OR OTHERWISE HEREUNDER. The disclaimer of warranties and limitations set forth in this Agreement constitute an essential part of this Agreement.
10. INDEMNIFICATION.
10.1 IP Indemnification: ABCO shall defend, indemnify and hold harmless Evolent and its Affiliates (other than ABCO), customers, and their respective officers, directors and employees from and against any Losses resulting from a claim that the Services provided by ABCO under this Agreement infringes or misappropriates a third party’s intellectual property rights. ABCO shall also use commercially reasonable efforts to modify the allegedly infringing Services to make it non-infringing, procure a license from the third party claiming infringement to permit Evolent to continue to use the Services, or provide Evolent with functionally equivalent and non-infringing Services. THIS SECTION 10.1 SETS FORTH ABCO’S SOLE AND EXCLUSIVE LIABILITY, AND EVOLENT’S SOLE AND EXCLUSIVE REMEDY, FOR ALLEGATIONS OR CLAIMS OF INFRINGEMENT OF THIRD PARTY RIGHTS OF ANY KIND ASSERTED AGAINST EVOLENT, ITS AFFILIATES (OTHER THAN ABCO), CUSTOMERS AND THEIR RESPECTIVE OFFICERS, DIRECTORS AND EMPLOYEES. ABCO shall not be obligated to indemnify Evolent, its Affiliates, customers, and their respective officers, directors and employees for infringement or misappropriation claims to the extent such claims arise out of use by Evolent or its customers of any of the Services in a manner other than as contemplated by the Parties under this Agreement.
10.2 ABCO’s Indemnification: ABCO hereby agrees to indemnify, defend, and hold Evolent and its Affiliates (other than ABCO), and all of their respective directors, officers, members, managers, partners, employees, agents, successors and assigns, harmless from and against any Losses arising from or related to: (a) the material breach of this Agreement, including any or all SOWs, by ABCO or its personnel (including contractors); (b) breach of any of ABCO’s representations, warranties, and covenants in this Agreement; or (c) negligence or willful misconduct by ABCO or its personnel (including contractors).
10.3 Evolent’s Indemnification: Evolent hereby agrees to indemnify, defend, and hold ABCO and its Affiliates (other than Evolent), and all of their respective directors, officers, members, managers, partners, employees, agents, successors and assigns, harmless from and against any Losses arising from or related to: (a) the material breach of this Agreement, including any or all SOWS, by Evolent or its personnel (including contractors); (b) breach of any of Evolent’s representations, warranties and covenants in this Agreement; or (c) negligence or willful misconduct by Evolent or its personnel (including contractors).
10.4 Indemnification Procedure:
10.4.1 Notice of Claim. Any Party seeking indemnification hereunder (the “Indemnitee”) shall notify the Party liable for such indemnification (the “Indemnitor”) in writing of any event, omission or occurrence that the Indemnitee has determined has given or could give rise to Losses that are indemnifiable hereunder (such written notice being hereinafter referred to as a “Notice of Claims”). Such Notice of Claims shall be given promptly after the Indemnitee becomes aware of its own claim or that of a third party; provided that the failure of any Indemnitee to give notice as provided in this Section 10.4.1 shall not relieve the Indemnitor of its obligations under this Section 10. A Notice of Claims shall specify in reasonable detail the nature and any particulars of the event, omission, or occurrence giving rise to a right of indemnification. The Indemnitor shall satisfy its obligations hereunder, as the case may be, within thirty (30) days of its receipt of a Notice of Claims.
10.4.2 Process. With respect to any third party claim, demand, suit, action, or proceeding that is the subject of a Notice of Claim, the Indemnitor shall, in good faith and at its own expense, defend, contest, or otherwise protect against any such claim, demand, suit, action, or proceeding with legal counsel of its own selection (and reasonably acceptable to the Indemnitee). The Indemnitee shall have the right, but not the obligation, to participate, at its own expense, in the defense thereof through counsel of its own choice and shall have the right, but not the obligation, to assert any and all cross claims or counterclaims it may have. So long as the Indemnitor is defending in good faith any such third party claim, demand, suit, action or proceeding, the Indemnitee shall at all times cooperate, at its own expense, in all reasonable ways with, make its relevant files and records available for inspection and copying by, and make its employees available or otherwise render reasonable assistance to, the Indemnitor. In the event that the Indemnitor fails to timely defend, contest or otherwise protect against any such third party claim, demand, suit, action, or proceeding, the Indemnitee shall have the right, but not the obligation, to defend, contest, assert cross claims or counterclaims, or otherwise protect against, the same and may make any compromise or settlement thereof and be entitled to all amounts paid as a result of such third party claim, demand, suit, or action or any compromise or settlement thereof. The Indemnitor will not consent to the entry of any judgment or enter into any settlement with respect to any such third party claim, demand, suit, action or proceeding without the prior written consent of the Indemnitee, which will not be unreasonably withheld, and provided that no settlement shall require the Indemnitee to admit liability, or perform or become subject to additional obligations thereunder.
11. LIMITS OF LIABILITY. EXCEPT WITH RESPECT TO OR BREACH BY EITHER PARTY OF THE OTHER PARTY’S CONFIDENTIAL INFORMATION UNDER SECTION 8,
NEITHER EVOLENT NOR ABCO SHALL BE LIABLE FOR, NOR WILL THE MEASURE OF DAMAGES INCLUDE, ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OR AMOUNTS INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF INCOME, PROFITS, OR SAVINGS, LOSS OF DATA, OR COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES, ARISING OUT OF OR RELATING TO ITS PERFORMANCE UNDER THIS AGREEMENT UNDER ANY CAUSE OF ACTION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL EITHER PARTY’S LIABILITY EXCEED THE AMOUNT OF REVENUE ACTUALLY RECEIVED BY ABCO IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO THE CLAIM.
12. TERMINATION.
12.1 Termination for Cause: Either Party shall have the right to terminate this Agreement in the event the other Party materially violates a material provision of this Agreement and such violation is not cured or cannot be cured within thirty (30) days after written notice of such material violation.
12.2 Survival: The rights and obligations contained in Sections 1, 5 (with respect to Evolent’s payment obligations that may extend beyond the Term), 6.2, 6.3, 8, 9.4, 10, 11, 12.2, 13 and 14 shall survive any termination or expiration of this Agreement.
13. ESCALATION; DISPUTE RESOLUTION. Subject to the terms of Section 13.5, the procedures of this Section 13 will control the resolution of any and all disputes between the Parties including, without limitation, any dispute relating to disputed monies owing or breach of warranty (each, a “Dispute”). The Parties will seek to resolve each Dispute as follows:
13.1 First Level Performance Review: Each Party’s Relationship Manager will meet as often as will reasonably be required by either Party to review the performance of either Party under this Agreement and to resolve the Dispute. If these representatives are unable to resolve the Dispute within ten (10) business days after the initial request for a meeting, then the Parties will submit the Dispute to an executive level performance review as provided in Section 13.2 below.
13.2 Executive Level Performance Review: Face-to-face negotiations will be conducted by a senior executive officer of each Party (or such other executive as a Party may designate). If these representatives are unable to resolve the Dispute within five (5) business days after the Parties have commenced negotiations or ten (10) business days have passed since the initial request for a meeting at this level, then the Parties may jointly engage the services of a third-party mediator.
13.3 Arbitration: If the Parties are unable to resolve the Dispute through the alternative mechanisms described above, the Parties shall submit the Dispute for resolution through binding arbitration, except as otherwise provided in Section 13.5. The Parties agree and consent to such arbitration proceeding taking place in Wilmington, Delaware, and in accordance with the Commercial Arbitration Rules of the American Arbitration Association, except that discovery may be had in accordance with the Federal Rules of Civil Procedure. The Parties shall be permitted at least six (6) months from the date of the filing of the Arbitration Demand to conduct discovery. The arbitration proceedings shall be conducted by a panel of three (3) impartial arbitrators, with each Party selecting one (1) of the impartial arbitrators and those two (2) arbitrators then selecting the third impartial arbitrator, all such selections to be made through the procedures of the American Arbitration Association. At least one (1) arbitrator must be an attorney licensed under the Laws of Pennsylvania and at least one (1) arbitrator (may be the same Person as the Pennsylvania attorney) must have direct and substantial experience in the industry pertinent to the subject matter of the Dispute. Judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof; provided, however, in rendering its decision, the arbitrators shall be bound by the Laws of the Commonwealth of Pennsylvania (without regard to its conflicts of laws provisions) and by the terms and conditions of this Agreement setting forth the rights and responsibilities of the Parties. The decision of the arbitration panel shall be accompanied by a written opinion setting forth the factual and legal bases for the award. The arbitrators shall issue such written decision within thirty (30) days of the conclusion of the arbitration hearing. The arbitrators appointed hereunder shall not have the power to award punitive damages. Service of a petition to confirm the arbitration award may be made by United States mail, postage prepaid, or by any regularly conducted commercial express mail service, to the attorney for the Party or, if not so represented, to the Party at the address set forth herein, or to the Party’s last known business address. The prevailing Party in any action related to or arising under this Agreement shall be entitled to reasonable attorneys’ fees and costs.
13.3.1 For any Dispute in which the amount in controversy is at least One Million Dollars ($1,000,000), the following additional procedures apply:
(a) a certified court reporter shall transcribe the arbitration hearings; The Parties initially split the cost of the reporter, but such costs shall ultimately be awarded to the Party prevailing in the arbitration proceeding; and
(b) either Party may take an appeal from the final decision by making a written demand within twenty (20) days of the award.
13.3.2 Any such appeal shall be conducted as follows:
(a) such appeals are limited to issues of Law (i.e., the original award (1) contains material errors of Law such that the original award is not founded on any appropriate legal basis; (2) is based on factual findings clearly unsupported by the record; or (3) is subject to one or more grounds set forth in Section 10 of the Federal Arbitration Act or 42 Pa. C.S.A. §7341 for vacating an award);
(b) the Person hearing the appeal shall be a former federal judge mutually agreed to by the Parties or selected through the procedures of the American Arbitration Association. The former judge shall act as the appellate arbitrator;
(c) the submissions on appeal are limited to (1) the record of the arbitration, (2) a 30-page brief by the appellant, (3) a 30-page brief by the appellee and (4) a 10-page response by the appellant. The appellate arbitrator will set the dates for submission of the briefs. Oral argument may be heard at the discretion of the appellate arbitrator;
(d) the appellate arbitrator shall render a written decision within sixty (60) days of the final submission;
(e) during the pendency of the arbitration appeal, the Parties agree to suspend any running of the time to seek enforcement of the original award. The Parties also agree to waive any appeal to state or federal courts based on the grounds set forth in Section 10 of the Federal Arbitration Act for vacating an award and 42 Pa. C.S.A. § 7341;
(f) the appellate arbitrator must award costs and attorneys’ fees to the prevailing Party; and
(g) the decision of the appellate arbitrator shall be final.
13.4 Continued Performance: Each Party acknowledges that the timely and complete performance of its obligations pursuant to this Agreement is critical to the business and operations of the other Party. Accordingly, in the event of a Dispute, each Party shall continue to so perform all of its obligations under this Agreement, in good faith during the resolution of such Dispute unless and until (a) authority to stop doing so is granted or conferred by a court of competent jurisdiction or (b) this Agreement is terminated in accordance with the provisions hereof.
13.5 Equitable Relief: Notwithstanding anything contained in this Agreement to the contrary, the Parties will be entitled to seek injunctive relief, specific performance or other equitable relief whenever the facts or circumstances would permit a Party to seek equitable relief in a court of competent jurisdiction. Without limiting the generality of the foregoing, (a) Evolent agrees that there would be irreparable harm to ABCO in the event of any such breach by Evolent of Section 6.2 and ABCO shall be entitled to (i) injunctive relief to prevent breaches of Section 6.2, (ii) specific performance of this Agreement, and (iii) any other remedies provided by Law or equity, including without limitation an award for damages, and (b) ABCO agrees that there would be irreparable harm to Evolent in the event of any such breach by ABCO of Section 6.1.1, and Evolent shall be entitled to (i) injunctive relief to prevent breaches of Section 6.1.1, (ii) specific performance of this Agreement, and (iii) any other remedies provided by Law or equity, including without limitation an award for damages.
14. MISCELLANEOUS PROVISIONS.
14.1 Good Faith and Mutual Agreement: Unless otherwise expressly stated in such provision, if a provision in this Agreement calls for the consent of a Party or the mutual agreement of the Parties, the Parties agree that each will act in good faith, will not unreasonably withhold their consent and that deference shall be given to the other Party’s reasonable business requirements, and the requirements of the Parties’ respective regulators and internal controls procedures.
14.2 Independent Contractor: The relationship of ABCO to Evolent shall at all times be that of an independent contractor. Nothing in this Agreement shall be construed to create any partnership, association, joint venture, or employment between the Parties. Each Party shall have the sole and exclusive control over the labor and employee relations policies and policies relating to wages, hours, working conditions, benefits, or other conditions of its personnel and shall be responsible and liable for the acts and omissions of its employees, agents and contractors.
14.3 Assignability: Evolent has entered into this Agreement because of the expertise of ABCO, and ABCO understands that the obligations of ABCO are personal to ABCO and may not be assigned to any other company, partnership or individual without the express written consent of Evolent; provided, however, that no consent shall be required if an assignment is made in connection with a sale of all or substantially all of ABCO’s assets or stock, or in connection with a merger or Change of Control. Evolent may assign this Agreement (including the licenses granted pursuant to this Agreement) to any Affiliate of Evolent as part of an internal reorganization or in connection with a sale of substantially all of its assets or stock, or in connection with a merger or Change of Control.
14.4 Governing Law and Jurisdiction: This Agreement shall be governed by and construed and enforced in accordance with the Laws of the Commonwealth of Pennsylvania, without regard to that state or any other state’s conflicts of law rules. Each Party irrevocably consents to the personal jurisdiction of the state and federal courts located in Wilmington, Delaware for any suit or action arising from or related to this Agreement.
14.5 Force Majeure: Neither Party shall be deemed in default of this Agreement to the extent that performance of their obligations or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, act of government, or any other cause beyond the control of such Party, provided that such Party gives the other Party written notice thereof promptly and, in any event, within fifteen (15) days of discovery thereof, and uses its commercially reasonable efforts to cure any such breach.
14.6 Entire Agreement: This Agreement and its exhibits, schedules, and attachments constitute the entire understanding between the Parties with respect to the subject matter hereof and supersede all prior written or oral representations with respect to the subject matter hereof. This Agreement may not be modified, amended, or otherwise changed in any manner except by a written instrument executed by the Party against whom enforcement is sought.
14.7 Cumulative Remedies: Except as expressly provided in this Agreement, (a) remedies for breach are cumulative and may be exercised separately or concurrently, (b) the exercise of one remedy is not an election of that remedy to the exclusion of others, and (c) the provision for any remedy in this Agreement shall not affect remedies otherwise available at Law or in equity.
14.8 No Third Party Beneficiaries: The Parties do not intend that this Agreement creates any right or cause of action in or on behalf of any Person other than Evolent and ABCO.
14.9 Headings: Section headings have been included in this Agreement merely for convenience of reference. They are not to be considered part of, or to be used in interpreting this Agreement.
14.10 Binding Effect: The covenants and conditions contained herein will apply to and bind the successors, representatives, and permitted assigns of the Parties.
14.11 Expenses: Each Party shall be responsible for its own legal, accounting and other transaction costs relating to the transactions contemplated in this Agreement.
14.12 Notices: All notices required to be given hereunder shall be in writing and given hereunder, as elected by the Party giving notice, as follows: (a) by personal delivery, (b) sent by overnight courier with confirmation of receipt, or (c) dispatched by certified or registered mail, return receipt requested, postage prepaid, addressed to the Parties as follows.
If to Evolent: Evolent, Inc.
800 N. Glebe Road, Suite 500
Arlington, VA 22203
Attention: President
Morgan Lewis & Bockius, LLP
225 Franklin Street
Boston, MA 02110
Attention: Mark B. Stein, Esq.
Fax No.: (617) 341-7701
If to ABCO: The Advisory Board Company
2445 M St. NW
Washington, DC 20037
Attention: General Counsel
Notice shall be deemed given (a) on the date of receipt if delivered personally; (b) on the business day following delivery of such notice to the overnight courier; or (c) three (3) business days after deposit in the mail in accordance with the foregoing. Either Party may change the address to which to send notices by notifying the other Party of such change of address in writing in accordance with the foregoing.
14.13 Press Releases: No press releases or other public announcements concerning the transactions contemplated by this Agreement shall be made by ABCO or Evolent without the prior written consent of both Parties; provided, however, that nothing herein shall prevent a Party from supplying such information or making statements as required by governmental authority or in order for a Party to satisfy its legal obligations (prompt notice of which shall in any such case be given to the other Party).
14.14 Severability: Any terms or provisions of this Agreement that shall prove to be invalid, void or illegal shall in no way affect, impair, or invalidate any other term or provision herein and such remaining terms and provisions shall remain in full force and effect provided that its general purposes are still reasonably capable of being effected. All such terms or provisions which are determined by a court of competent jurisdiction or other dispute resolution proceeding to be invalid, void or illegal shall be construed and limited so as to allow the maximum effect permissible by Law.
14.15 Waiver: The waiver by either Party to this Agreement of any one or more defaults, if any, on the part of the other, shall not be construed to operate as a waiver of any other or future defaults under the same or different terms, conditions or covenants contained in this Agreement.
IN WITNESS WHEREOF, the Parties have executed this Agreement effective as of the date first written above.
THE ADVISORY BOARD COMPANY EVOLENT HEALTH, INC.
/s/ Evan Farber
By: Evan Farber By:
Its: General Counsel Its:
[Signature Page to Amended and Restated Services, Reseller and Non-Competition Agreement]
IN WITNESS WHEREOF, the Parties have executed this Agreement effective as of the date first written above.
THE ADVISORY BOARD COMPANY EVOLENT HEALTH, INC.
/s/ Frank Williams
By: By: Frank Williams
Its: Its: CEO
| Not mentioned |
622_nda-3 | 622_nda-3_0 | Q: Confidential Information may include verbally conveyed information.
Text: Exhibit 10.16
AMENDED AND RESTATED
SERVICES, RESELLER AND NON-COMPETITION AGREEMENT
THIS AMENDED AND RESTATED SERVICES, RESELLER AND NON-COMPETITION AGREEMENT (this “Agreement”) is made and entered into effective as of June 27, 2013 (the “Effective Date”) by and between The Advisory Board Company, a Delaware corporation (“ABCO”), and Evolent Health, Inc. (f/k/a VPHealth, Inc.), a Delaware corporation (“Evolent”), (each, a “Party”, and collectively, the “Parties”).
RECITALS
WHEREAS, ABCO and Evolent entered into a Services, Reseller and Non-Competition Agreement (the “Original Agreement”), effective as of August 31, 2011 (the “Original Effective Date”);
WHEREAS, since entering into the Original Agreement, Evolent and ABCO have continued to explore ways to improve the efficiency and implementation of their relationship; and
WHEREAS, as a result of the foregoing efforts, the Parties have agreed to amend and restate the Original Agreement as set forth in this Agreement.
NOW, THEREFORE, in consideration of the above recitals, the terms and conditions hereinafter set forth, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto agree as follows:
1. DEFINITIONS. For purposes of this Agreement:
1.1 “ABCO Restricted Products and Services” means (a) care management services including, but not limited to, traditional disease management services, direct patient outreach and other service-based care management offerings (e.g., readmissions management teams, nurse call centers, on-site care management teams); (b) care management workflow software designed for and used by provider-owned payor organizations or other entities intending to conduct active care management campaigns targeted at managing population health/longitudinal outcomes (i.e, solutions that are the same as or substantially similar to (i.e. functionality that is redundant in substantial and material respects with) HealthPlaNet); (c) services primarily intended to support cost reduction and benefit changes for health system employees; (d) consulting services comparable and competitive with blueprint consulting services offered by Evolent as of the Effective Date (“Blueprint Services”), (e) Exclusive TPA Services or (f) Crimson Care Registry products. For the avoidance of doubt, Restricted Products and Services does not include behavioral health-related services or software (e.g., Askesis Development Group software), services similar to those offered by UPMC WorkPartners (e.g., “Take-a-Healthy-Step” or similar health and wellness programs, occupational medicine, on-site clinic implementation and administration, employee assistance services, absence management or workers’ compensation services), or software or solutions similar to those offered by EBenefits Solutions, LLC.
1.2 “Active Sales Process”, with respect to any Person as of any date on which Evolent proposes to add such Person to the list of Evolent Top Prospects, means such Person (a) is not an Evolent Client as of such date and (b) either (i) has purchased ABCO Restricted Products and Services from ABCO prior to such date or (b) was engaged in active discussions with ABCO about acquiring ABCO Restricted Products and Services (including, but not limited to, a review of the applicable offering of ABCO Restricted Products and Services) as of such date.
1.3 “Affiliate” means any Person which Controls, is Controlled by, or is in common Control with, another Person.
1.4 “Business Plan” has the meaning set forth in that certain Intellectual Property License and Data Access Agreement between the Parties.
1.5 “Change of Control” with respect to any entity means a transaction or series of related transactions in which a Person, or a group of related Persons, acquires from stockholders of the subject entity, the entity’s shares representing more than fifty percent (50%) of the outstanding voting power of such entity.
1.6 “Confidential Information” means any and all technical and non-technical information, whether conveyed verbally, in writing, electronically or by any other means, including, but not limited to, trade secrets, source code, technology, know-how and proprietary information, techniques, plans or any other information relating to any research project, analysis, work in process, future development, scientific, engineering, marketing or business plans or financial, contractual or personnel matters relating to either Party or its present or future products, services, sales, suppliers, identity of and information relating to customers and prospective customers, customer or prospect list, prospective employees, investors or affiliates or other proprietary information disclosed or otherwise supplied in confidence by either Party to the other, to the extent that such information is provided pursuant to this Agreement by one Party to the other Party and is marked “confidential” or “proprietary” or that should be reasonably understood by the Receiving Party (based on the nature of the information or the context in which the information is disclosed) should be considered confidential. Confidential Information will not include information to the extent that: (a) such information is or becomes publicly available other than through any act or omission of either Party in breach of this Agreement; (b) such information was received by the Receiving Party, other than under an obligation of confidentiality, from a third party who had no obligation of confidentiality to the other Party; (c) such information was in the possession of the Receiving Party at the time of the disclosure or was independently developed by the Receiving Party, as reflected by the Receiving Party’s internal, written and dated documentation; or (d) an applicable regulation, court order or other legal process requires the disclosure of such information, provided that prior to such disclosure the Disclosing Party will give notice to the other Party so that the other Party may take reasonable steps to oppose or limit such disclosure, so that the Disclosing Party does not disclose any more information than necessary to comply with such legal process. The burden of proof that Confidential Information falls into any one of the above exemptions will be borne by the Party claiming such exemption with documentation or other credible evidence.
1.7 “Control” as used with respect to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities, by agreement or otherwise.
1.8 “Evolent Clients” means entities under a current contract with Evolent for an implementation and/or long-term services contract. 1.9 “Evolent Top Prospects” means, as of any date, up to twenty (20) potential Evolent customers in the Evolent sales pipeline identified by Evolent that are not Evolent Clients as of such date, and (a) are engaged in active discussions with Evolent regarding purchasing Evolent products and services and/or (b) are under a current contract with Evolent for Blueprint Services or other services that do not constitute implementation or long-term services; provided, however, that (i) the list of such potential Evolent customers may be updated by Evolent on a quarterly basis, and ABCO shall have the opportunity upon receipt of each such quarterly update to notify Evolent if any of the Persons added to such list are in an Active Sales Process with ABCO and shall therefore be removed from such list, and (ii) no Person shall remain on the list of Evolent Top Prospects for more than (x) twelve (12) consecutive months, in the case of potential Evolent customers without a signed agreement with Evolent, or (y) twenty-four (24) consecutive months, in the case of potential Evolent Clients that signed an agreement for Blueprint Services with Evolent before or within twelve (12) months of being added to the list of Evolent Top Prospects.
1.10 “Exclusive TPA Services” means certain services as set forth on Schedule 1 of the UPMC Reseller Agreement (as in effect on the Effective Date), to the extent that UPMC Health Plan, Inc., a Pennsylvania nonprofit corporation (“UPMC”), has the exclusive right to provide such services to Evolent, for resale by Evolent to its customers.
1.11 “Disclosing Party” means a Party that provides Confidential Information to the other Party, or the other Party’s Affiliates.
1.12 “Governmental Authority” means any federal, state, municipal, local, territorial, or other governmental department, regulatory authority, judicial or administrative body, whether domestic, foreign or international.
1.13 “Law” means all international, federal, country, state, provincial, local and other laws, rules and regulations, declaration, decree, directive, legislative enactment, order, code, ordinance, regulation, rule or other binding restriction of or by any Governmental Authority, as the same are promulgated, supplemented or amended from time to time.
1.14 “Loss” individually, and collectively, “Losses” means all claims, liabilities, obligations, losses, costs, expenses (including, without limitation, legal, accounting and similar expenses), litigation, proceedings, fines, taxes, levies, imposts, duties, deficiencies, assessments, charges, penalties, allegations, demands, damages (including, but not limited to, actual, punitive or consequential, foreseen or unforeseen, known or unknown, fixed or contingent, and matured or unmatured), civil and criminal violations of Law, settlements and judgments of any kind or nature whatsoever.
1.15 “Person” means any individual, corporation, partnership, firm, joint venture, association, limited liability company, limited liability partnership, joint-stock company, trust, joint venture, unincorporated organization, governmental, judicial or regulatory body, business unit, division or any other business entity, organization or Governmental Authority.
1.16 “Receiving Party” means a Party that receives Confidential Information from the other Party or the other Party’s Affiliates.
1.17 “Statement of Work” or “SOW” means an agreement by and between ABCO and Evolent that contains the detailed description of services, scope, specifications, pricing, implementation plan, timetables, milestones, and other terms and conditions for each procurement of services, as applicable.
1.18 “UPMC Reseller Agreement” means that certain Second Amended and Restated Reseller, Services and Non-Competition Agreement between UPMC and Evolent dated as of [the Effective Date].
2. SERVICES TO BE PROVIDED BY ABCO.
2.1 General Services:
2.1.1 Minimum Purchase. The Parties hereby acknowledge and agree that Evolent has purchased from ABCO a minimum of Two Hundred Thousand Dollars ($200,000) of services (as described in Section 2.2.1) (the “Original Minimum Purchase”) for delivery between the Original Effective Date and the first anniversary thereof.
2.1.2 Statements of Work. The specific description, price, service levels (if applicable) and other project, service, and/or customer-specific terms for a particular service that may be provided by ABCO to Evolent (each, a “Service”, and collectively, the “Services”) shall be set forth in a Statement of Work that will be created on a project by project basis.
2.2 Right of First Offer and Process for Invoking:
2.2.1 Applicable Services. Throughout the Term, ABCO shall have the right of first offer to provide the following services to Evolent and Evolent’s customers:
(a) Physician practice management consulting and other physician practice management services;
(b) Physician incentive design services;
(c) Medical home development consulting services; and
(d) Performance analytics shared with physicians with the intent to improve outcomes.
2.2.2 Process for Exercising Right of First Offer. Evolent shall notify ABCO in writing in the event Evolent desires to receive any of the above services (“First Offer Services”). ABCO shall have a period of thirty (30) days (“First Offer Services Evaluation Period”) within which to conduct its evaluation and diligence with respect to providing such First Offer Services. Evolent shall cooperate with ABCO and provide reasonable assistance and information to ABCO to enable ABCO to conduct its evaluation. Within five (5) business days after the expiration of such First Offer Services Evaluation Period, ABCO shall notify Evolent in writing whether or not it wishes to provide such services to Evolent. If ABCO elects to provide such First Offer Services, Evolent agrees to engage in good faith negotiations with ABCO, on an exclusive basis for a period of sixty (60) days, regarding the specific terms covering such First Offer Services.
2.3 Failure to Execute a Service Agreement for the VBC Innovation Center: The Parties acknowledge and agree that it was their intent as of the Original Effective Date to enter into a service agreement under which Evolent would engage ABCO to provide certain consulting, development and support services in connection with the creation, launch, implementation and ongoing support of a Value-Based Care Innovation Center (the “VBC Innovation Center”), in consideration for which Evolent would pay ABCO a fixed fee of Eight Hundred Thousand Dollars ($800,000) per year (“Fixed Fee”) for each of the first two (2) years of the term of such VBC Innovation Center service agreement. The Parties acknowledge and agree that, notwithstanding the fact that they negotiated with diligence and in good faith the specific terms and conditions of such service agreement, the Parties were unable to reach an agreement with respect to the VBC Innovation Center. Accordingly, the Original Minimum Purchase is increased to One Million Two Hundred Thousand Dollars ($1,200,000) (the “Minimum Purchase”) as follows: (a) between the Original Effective Date and the second anniversary thereof, Evolent shall have purchased from ABCO a minimum of Seven Hundred Thousand Dollars ($700,000) of services for delivery on or prior to such second anniversary of the Original Effective Date), and (b) inclusive of the purchases described in clause (a), between the Original Effective Date and the third anniversary thereof, Evolent shall have purchased from ABCO a minimum of One Million Two Hundred Thousand Dollars ($1,200,000) of services for delivery on or prior to such third anniversary of the Original Effective Date); provided that, for purposes of this sentence, “services” shall include consulting, software, professional or analytic services provided from time to time by ABCO to Evolent (other than services in connection with the provision of any office space by or on behalf of ABCO to Evolent) or, pursuant to a joint written proposal by ABCO and Evolent, to any Evolent Client.
2.4 Reservation of Rights: For the avoidance of doubt, Evolent is not precluded from offering and providing services directly to its customers, subject (a) to (i.e., after ABCO has had the full opportunity to exercise) ABCO’s right of first offer to provide any First Offer Services in accordance with Section 2.2) and (b) to Evolent’s compliance with its non-competition obligations as set forth in Section 6.2.
2.5 Designation of Relationship Managers: In order to support the launch and ongoing success of the exclusive reseller relationship between ABCO and Evolent, each Party agrees to designate a senior level individual who will serve as the primary liaison and “go to” contact and relationship manager for such Party (each, a “Relationship Manager”). Each Party’s Relationship Manager’s role and responsibilities would include: (a) facilitating day-to-day communications between the Parties regarding customer-facing activities, such as marketing, promotional and sales activities and preparing and submitting bids, proposals, responses to requests for proposals, fee estimates, Statements of Work and project plans; (b) receiving and submitting requests between the Parties for information and/or assistance; (c) overseeing the efficient knowledge transfer and flow of information between the Parties; (d) facilitating communications between the appropriate individuals within Evolent and ABCO, with respect to product and service offering development; and (e) providing the first level of performance review or escalation in the event of a Dispute as provided in Section 13. The Relationship Managers will meet regularly, but no less frequently than monthly, as reasonably necessary, to maintain a good working relationship between the Parties. Each Party may change its Relationship Manager by giving the other Party reasonable notice as long as the change is implemented in a manner that does not cause any significant disruption to each Party’s business operations and business relationship.
3. FEES; PAYMENT TERMS; SHORTFALL.
3.1 Fees; Timing of Payments: Evolent shall pay ABCO the applicable fees for the Services performed by ABCO pursuant to a Statement of Work, as follows: (a) unless the Parties otherwise agree in writing, a deposit of 50% of the total fees for the particular project shall be paid upon signing of the Statement of Work; (b) ABCO will submit an invoice to Evolent for the balance upon completion of the work; and (c) Evolent shall pay ABCO for such invoiced amount within thirty (30) days after receipt of such invoice.
3.2 Minimum Purchase and Shortfall: Evolent agrees to pay ABCO the Minimum Purchase. If the aggregate amount of Services actually procured by Evolent from ABCO is not equal to or greater than (a) Seven Hundred Thousand Dollars ($700,000) of services for delivery on or prior to the second anniversary of the Original Effective Date or (b) inclusive of the purchase described in clause (a), the Minimum Purchase of services for delivery on or prior to the third anniversary of the Original Effective Date, Evolent shall pay ABCO the amount of the shortfall (i.e., the difference between Seven Hundred Thousand Dollars ($700,000) or the Minimum Purchase amount, as applicable, less the sum of: (a) the aggregate fees for the actual amount of Services procured; and (b) any Credits (as provided in the next sentence) (the “Shortfall”), if any, on or before August 31, 2013 or August 31, 2014, as applicable. In the event that ABCO refuses or fails, without reasonable cause, to provide any of the Services requested by Evolent (provided the scope of the Services requested is within the scope customarily provided by ABCO), the fees that would otherwise have been applicable had ABCO agreed to provide such Services would count as a “Credit”. As of the date hereof, no such Credits have accrued.
4. TERM AND RENEWAL. The initial term of this Agreement shall commence on the Effective Date and unless sooner terminated in accordance with the terms hereof, shall continue until August 31, 2016 (“Initial Term”). Thereafter, this Agreement shall automatically be renewed for another five-year term (“Renewal Term”) unless either Party elects to terminate this Agreement by providing the other Party with written notice of termination one hundred eighty (180) days prior to the expiration of the current term. (“Initial Term” and “Renewal Term” collectively, the “Term”).
5. REFERRAL FEES, SOLICITATION AND COMPETITION AND POST-CLOSING SERVICES.
5.1 Referral Fees:
5.1.1 During the Term, ABCO will pay Evolent a sales referral fee for any sale made by ABCO that resulted from a “net” new sale from a new customer that was not already in ABCO’s sales pipeline (i.e., a “warm lead”) or a then-current customer of ABCO generated directly by Evolent’s efforts and without any assistance from any ABCO employee or representative (including any Evolent employee that serves on the Board of Directors of ABCO), equal to 5% of the total ABCO revenue from the new customer during the initial twelve (12) months of services under the services agreement with such new customer.
5.1.2 During the Term, Evolent will pay ABCO a sales referral fee for any sale made by Evolent that resulted from a “net” new sale from a new customer that was not already in Evolent’s sales pipeline (i.e., a “warm lead”) or a then-current customer of Evolent generated directly by ABCO’s efforts and without any assistance from any Evolent employee or representative (including any ABCO employee that serves on the Board of Directors of Evolent), in accordance with the following terms:
(a) ABCO will receive a one-time referral fee for any “employee health” diagnostic, consulting or broker services provided by Evolent to a Covered Health System, equal to the lesser of $20,000 or 5% of the total Evolent revenue from the Covered Health System during the initial twelve (12) months of services under the service agreement with such Covered Health System.
(b) ABCO will receive $50,000 per year for three (3) years for each health system joining Evolent as an Employee Health Platform Customer. An “Employee Health Platform Customer” is defined as a health system purchasing diagnostic/consulting services and ongoing medical management/health plan services (i.e., care management, HealthPlaNet care management application, and the TPA platform, etc.).
(c) ABCO will receive $100,000 per year for three (3) years for a health system joining Evolent as a Platform Health Plan Customer. A “Platform Health Plan Customer” is defined as a health system purchasing ongoing medical management services, ongoing health plan outsourcing services (i.e., TPA) and health plan management services for purposes of a licensed insurance entity with at least fifty thousand (50,000) lives (beyond the employee population).
(d) With the exception of making the introduction (either through an email or an in-person meeting) (to generate the “warm lead”), ABCO would not be expected to perform any actual duties or incur actual cost to receive a referral fee.
(e) The annual referral fees for each referral would be capped at the lesser of (x) 5% of annual revenue generated by Evolent for the respective customer and (y) the $50,000 or $100,000 figures described above, as applicable.
6. SOLICITATION AND COMPETITION.
6.1 Scope:
6.1.1 Throughout the Term, ABCO agrees not to offer any ABCO Restricted Products and Services to (a) any Evolent Clients or (b) any Evolent Top Prospects; provided, however, that ABCO shall not be restricted from making any such offer to any Evolent Top Prospect or Evolent Client with whom ABCO was, at the time such Person was identified as an Evolent Top Prospect or became an Evolent Client, engaged in an Active Sales Process. The foregoing restrictions shall not apply in the event of a Change of Control of Evolent or in the event that ABCO ceases to be a shareholder of Evolent.
6.1.2 None of the foregoing would prohibit ABCO from:
(a) Marketing, offering, licensing or selling versions of any of its Crimson Population Risk Management products, or the successors to any such products, provided that such products, or the successors to any such products, are not the same as or substantially similar to (i.e., includes functionality that is redundant in substantial and material respects with) HealthPlaNet as it exists as of the Effective Date.
(b) Supporting employers with care management related best practices and research.
(c) Offering traditional “dedicated advisor” support in conjunction with ABCO’s traditional business intelligence offerings.
(d) Marketing, offering, licensing or selling its employer health product.
(e) Providing physician management consulting and other physician management services.
6.2 Restrictions Relating to Certain ABCO Products and Services: Evolent shall not, until the earlier of (x) ABCO’s ceasing to be a shareholder of Evolent or (y) the seventh (7 ) anniversary of the date of this Agreement, promote, market, provide, offer or sellth (a) unbundled software applications, software tools or other similar technologies (including, without limitation, software as a service, analytics technology or data services) (each, a “Technology Solution”), (b) consulting services that are not intended to lead to or be a part of a Blueprint Services engagement, implementation contract and/or long-term services contract, or (c) any best practices membership programs or unbundled or bundled physician practice management and other physician practice management consulting services, in each case referred to in this clause (c) that are substantially similar to, or that are competitive with, ABCO’s best practices membership programs or physician practice management or other physician practice management consulting services that are offered by ABCO as of the date first written above. For the avoidance of doubt, “unbundled” means on a stand-alone basis, instead of “bundled”, which contemplates that the Technology Solution is both (i) offered as part of a “packaged”, integrated offering, in conjunction with other Evolent products or services that are not Technology Solutions (and not only services that constitute customary software, data and end user support-related services), such as the Exclusive TPA Services, and (ii) incidental to the provision of such other Evolent products or services. Notwithstanding any other provision hereof, the foregoing restrictions in this Section 6.2 shall survive a Change of Control of Evolent for seven (7) years from the date of this Agreement; provided, however, that prior to the seventh (7 ) anniversary of the date of thisth Agreement, the acquiring party in a Change of Control of Evolent shall be not be subject to the foregoing restrictions with respect to any Technology Solutions or consulting services, in each case, that are unrelated to the Evolent assets acquired.
6.3 Non-Solicitation or Hiring: During the Term and for a period of eighteen (18) months thereafter, Evolent shall not solicit or hire any of ABCO’s employees without ABCO’s prior written consent.
7. EXCLUSIVE RESELLER RIGHTS FOR FUTURE PRODUCTS.
In the event that Evolent creates a discrete or segregable product or service that can be sold to healthcare providers, Evolent shall notify ABCO in writing of such new offerings (“New Products”). ABCO shall have a period of ninety (90) days (“New Products Evaluation Period”) within which to conduct its evaluation and diligence with respect to providing such New Products. Evolent shall cooperate with ABCO and provide reasonable assistance and information to ABCO to enable ABCO to conduct its evaluation. Within five (5) business days after the expiration of such New Products Evaluation Period, ABCO shall notify Evolent in writing whether or not it wishes to have the right to resell such New Products. If ABCO elects to resell such New Products, Evolent and ABCO agree to negotiate in good faith on an exclusive basis for one hundred twenty (120) days the terms of a reseller agreement, under which ABCO would be the exclusive distributor (in addition to Evolent) of such New Products.
8. CONFIDENTIALITY.
8.1 Confidential Information: ABCO acknowledges that in connection with its rights and obligations under this Agreement it may gain access to the Confidential Information of Evolent and its customers and Affiliates. Evolent acknowledges that in connection with its rights and obligations under this Agreement, it may gain access to the Confidential Information of ABCO and its customers and Affiliates.
8.2 Non-Disclosure: The Receiving Party may disclose the Disclosing Party’s Confidential Information strictly on a need-to-know basis to only those personnel, including employees of the Receiving Party’s contractors, who require access to the Disclosing Party’s Confidential Information in order to perform or derive benefit from the Services or otherwise meet its obligations under this Agreement. The Receiving Party agrees: (a) to hold the Disclosing Party’s Confidential Information in strict confidence, using the same degree (but no less than a reasonable degree) of care and protection that it exercises with its own Confidential Information of a similar nature; (b) not to directly or indirectly disclose or otherwise make available any Confidential Information of the Disclosing Party to a third party; and (c) not to copy or use the Disclosing Party’s Confidential Information for any purpose other than as necessary to fulfill the Receiving Party’s obligations or exercise its rights under this Agreement. Each Receiving Party is responsible for ensuring that its employees, agents and contractors strictly abide by the requirements of confidentiality and restrictions on use as provided in this Section 8.2 and shall be liable to the Disclosing Party for any acts or omissions of its employees, agents and independent contractors relating to the Disclosing Party’s Confidential Information. The Receiving Party is allowed to disclose Confidential Information of the Disclosing Party to the extent required by Law or by the order or a court of similar judicial or administrative body with jurisdiction, provided that the Receiving Party notifies the Disclosing Party of such required disclosure promptly and in writing and cooperates with the Disclosing Party, at the Disclosing Party’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure. The provisions of this Section 8 shall survive beyond the expiration or termination of this Agreement.
8.3 Injunctive Relief: The Parties acknowledge and agree that monetary damages may be inadequate to compensate for a breach of the provisions contained in this Section 8 or other confidentiality provisions of this Agreement. In the event of such breach, the injured Party shall be entitled to seek injunctive relief (without the need to post bond) and any and all other remedies available at Law or in equity. This Section 8.3 in no way limits the liability or damages that may be assessed against a Party in the event of a breach by the other Party of any of the provisions of this Section 8.
8.4 Residuals: Notwithstanding anything in this Section 8 to the contrary, subject to any applicable statutory intellectual property rights applicable to patents, trademarks or copyrights, either Party may use “Residuals” for any purpose, including without limitation, for use in development, manufacture, promotion, sale and maintenance of its products and services; provided, however, that this right to Residuals does not represent a license under any patents, copyrights or trademarks of the Disclosing Party. The term “Residuals” means any information that is retained in the unaided memories of the Receiving Party’s employees who have had access to the Disclosing Party’s Confidential Information pursuant to the terms of this Agreement.
9. WARRANTIES.
9.1 Authority/No Conflict: ABCO represents and warrants that (a) it has the power and authority to enter into and perform its obligations under this Agreement without conflict with, default under, or violation of any Law, regulation, or agreement binding upon it, and (b) this Agreement has been duly authorized by all necessary organizational action, and duly and validly executed and delivered by it, and constitutes its legally valid and binding obligation, enforceable in accordance with its terms.
9.2 Services: ABCO represents, warrants and covenants that the Services provided under this Agreement will be performed in a professional and workmanlike manner.
9.3 Compliance with Laws/Approvals: Each of ABCO and Evolent shall comply in all material respects with all Laws and regulations applicable to ABCO or Evolent, as applicable, in performing its obligations under this Agreement. To the extent applicable, ABCO shall be responsible for obtaining all necessary permits, licenses, and consents, including governmental approvals, required of ABCO and its contractors in connection with the performance of its obligations under this Agreement, and Evolent shall be responsible for obtaining all necessary permits, licenses, and consents, including governmental approvals, required of Evolent and its contractors in connection with the performance of its obligations under this Agreement.
9.4 Limitations of Warranty: EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, ABCO MAKES NO OTHER WARRANTY OR REPRESENTATION, ORAL, WRITTEN, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE SERVICES, INCLUDING WITHOUT LIMITATION, THEIR QUALITY, PERFORMANCE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, UNINTERRUPTED OR ERROR-FREE OPERATION OR OTHERWISE HEREUNDER. The disclaimer of warranties and limitations set forth in this Agreement constitute an essential part of this Agreement.
10. INDEMNIFICATION.
10.1 IP Indemnification: ABCO shall defend, indemnify and hold harmless Evolent and its Affiliates (other than ABCO), customers, and their respective officers, directors and employees from and against any Losses resulting from a claim that the Services provided by ABCO under this Agreement infringes or misappropriates a third party’s intellectual property rights. ABCO shall also use commercially reasonable efforts to modify the allegedly infringing Services to make it non-infringing, procure a license from the third party claiming infringement to permit Evolent to continue to use the Services, or provide Evolent with functionally equivalent and non-infringing Services. THIS SECTION 10.1 SETS FORTH ABCO’S SOLE AND EXCLUSIVE LIABILITY, AND EVOLENT’S SOLE AND EXCLUSIVE REMEDY, FOR ALLEGATIONS OR CLAIMS OF INFRINGEMENT OF THIRD PARTY RIGHTS OF ANY KIND ASSERTED AGAINST EVOLENT, ITS AFFILIATES (OTHER THAN ABCO), CUSTOMERS AND THEIR RESPECTIVE OFFICERS, DIRECTORS AND EMPLOYEES. ABCO shall not be obligated to indemnify Evolent, its Affiliates, customers, and their respective officers, directors and employees for infringement or misappropriation claims to the extent such claims arise out of use by Evolent or its customers of any of the Services in a manner other than as contemplated by the Parties under this Agreement.
10.2 ABCO’s Indemnification: ABCO hereby agrees to indemnify, defend, and hold Evolent and its Affiliates (other than ABCO), and all of their respective directors, officers, members, managers, partners, employees, agents, successors and assigns, harmless from and against any Losses arising from or related to: (a) the material breach of this Agreement, including any or all SOWs, by ABCO or its personnel (including contractors); (b) breach of any of ABCO’s representations, warranties, and covenants in this Agreement; or (c) negligence or willful misconduct by ABCO or its personnel (including contractors).
10.3 Evolent’s Indemnification: Evolent hereby agrees to indemnify, defend, and hold ABCO and its Affiliates (other than Evolent), and all of their respective directors, officers, members, managers, partners, employees, agents, successors and assigns, harmless from and against any Losses arising from or related to: (a) the material breach of this Agreement, including any or all SOWS, by Evolent or its personnel (including contractors); (b) breach of any of Evolent’s representations, warranties and covenants in this Agreement; or (c) negligence or willful misconduct by Evolent or its personnel (including contractors).
10.4 Indemnification Procedure:
10.4.1 Notice of Claim. Any Party seeking indemnification hereunder (the “Indemnitee”) shall notify the Party liable for such indemnification (the “Indemnitor”) in writing of any event, omission or occurrence that the Indemnitee has determined has given or could give rise to Losses that are indemnifiable hereunder (such written notice being hereinafter referred to as a “Notice of Claims”). Such Notice of Claims shall be given promptly after the Indemnitee becomes aware of its own claim or that of a third party; provided that the failure of any Indemnitee to give notice as provided in this Section 10.4.1 shall not relieve the Indemnitor of its obligations under this Section 10. A Notice of Claims shall specify in reasonable detail the nature and any particulars of the event, omission, or occurrence giving rise to a right of indemnification. The Indemnitor shall satisfy its obligations hereunder, as the case may be, within thirty (30) days of its receipt of a Notice of Claims.
10.4.2 Process. With respect to any third party claim, demand, suit, action, or proceeding that is the subject of a Notice of Claim, the Indemnitor shall, in good faith and at its own expense, defend, contest, or otherwise protect against any such claim, demand, suit, action, or proceeding with legal counsel of its own selection (and reasonably acceptable to the Indemnitee). The Indemnitee shall have the right, but not the obligation, to participate, at its own expense, in the defense thereof through counsel of its own choice and shall have the right, but not the obligation, to assert any and all cross claims or counterclaims it may have. So long as the Indemnitor is defending in good faith any such third party claim, demand, suit, action or proceeding, the Indemnitee shall at all times cooperate, at its own expense, in all reasonable ways with, make its relevant files and records available for inspection and copying by, and make its employees available or otherwise render reasonable assistance to, the Indemnitor. In the event that the Indemnitor fails to timely defend, contest or otherwise protect against any such third party claim, demand, suit, action, or proceeding, the Indemnitee shall have the right, but not the obligation, to defend, contest, assert cross claims or counterclaims, or otherwise protect against, the same and may make any compromise or settlement thereof and be entitled to all amounts paid as a result of such third party claim, demand, suit, or action or any compromise or settlement thereof. The Indemnitor will not consent to the entry of any judgment or enter into any settlement with respect to any such third party claim, demand, suit, action or proceeding without the prior written consent of the Indemnitee, which will not be unreasonably withheld, and provided that no settlement shall require the Indemnitee to admit liability, or perform or become subject to additional obligations thereunder.
11. LIMITS OF LIABILITY. EXCEPT WITH RESPECT TO OR BREACH BY EITHER PARTY OF THE OTHER PARTY’S CONFIDENTIAL INFORMATION UNDER SECTION 8,
NEITHER EVOLENT NOR ABCO SHALL BE LIABLE FOR, NOR WILL THE MEASURE OF DAMAGES INCLUDE, ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OR AMOUNTS INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF INCOME, PROFITS, OR SAVINGS, LOSS OF DATA, OR COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES, ARISING OUT OF OR RELATING TO ITS PERFORMANCE UNDER THIS AGREEMENT UNDER ANY CAUSE OF ACTION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL EITHER PARTY’S LIABILITY EXCEED THE AMOUNT OF REVENUE ACTUALLY RECEIVED BY ABCO IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO THE CLAIM.
12. TERMINATION.
12.1 Termination for Cause: Either Party shall have the right to terminate this Agreement in the event the other Party materially violates a material provision of this Agreement and such violation is not cured or cannot be cured within thirty (30) days after written notice of such material violation.
12.2 Survival: The rights and obligations contained in Sections 1, 5 (with respect to Evolent’s payment obligations that may extend beyond the Term), 6.2, 6.3, 8, 9.4, 10, 11, 12.2, 13 and 14 shall survive any termination or expiration of this Agreement.
13. ESCALATION; DISPUTE RESOLUTION. Subject to the terms of Section 13.5, the procedures of this Section 13 will control the resolution of any and all disputes between the Parties including, without limitation, any dispute relating to disputed monies owing or breach of warranty (each, a “Dispute”). The Parties will seek to resolve each Dispute as follows:
13.1 First Level Performance Review: Each Party’s Relationship Manager will meet as often as will reasonably be required by either Party to review the performance of either Party under this Agreement and to resolve the Dispute. If these representatives are unable to resolve the Dispute within ten (10) business days after the initial request for a meeting, then the Parties will submit the Dispute to an executive level performance review as provided in Section 13.2 below.
13.2 Executive Level Performance Review: Face-to-face negotiations will be conducted by a senior executive officer of each Party (or such other executive as a Party may designate). If these representatives are unable to resolve the Dispute within five (5) business days after the Parties have commenced negotiations or ten (10) business days have passed since the initial request for a meeting at this level, then the Parties may jointly engage the services of a third-party mediator.
13.3 Arbitration: If the Parties are unable to resolve the Dispute through the alternative mechanisms described above, the Parties shall submit the Dispute for resolution through binding arbitration, except as otherwise provided in Section 13.5. The Parties agree and consent to such arbitration proceeding taking place in Wilmington, Delaware, and in accordance with the Commercial Arbitration Rules of the American Arbitration Association, except that discovery may be had in accordance with the Federal Rules of Civil Procedure. The Parties shall be permitted at least six (6) months from the date of the filing of the Arbitration Demand to conduct discovery. The arbitration proceedings shall be conducted by a panel of three (3) impartial arbitrators, with each Party selecting one (1) of the impartial arbitrators and those two (2) arbitrators then selecting the third impartial arbitrator, all such selections to be made through the procedures of the American Arbitration Association. At least one (1) arbitrator must be an attorney licensed under the Laws of Pennsylvania and at least one (1) arbitrator (may be the same Person as the Pennsylvania attorney) must have direct and substantial experience in the industry pertinent to the subject matter of the Dispute. Judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof; provided, however, in rendering its decision, the arbitrators shall be bound by the Laws of the Commonwealth of Pennsylvania (without regard to its conflicts of laws provisions) and by the terms and conditions of this Agreement setting forth the rights and responsibilities of the Parties. The decision of the arbitration panel shall be accompanied by a written opinion setting forth the factual and legal bases for the award. The arbitrators shall issue such written decision within thirty (30) days of the conclusion of the arbitration hearing. The arbitrators appointed hereunder shall not have the power to award punitive damages. Service of a petition to confirm the arbitration award may be made by United States mail, postage prepaid, or by any regularly conducted commercial express mail service, to the attorney for the Party or, if not so represented, to the Party at the address set forth herein, or to the Party’s last known business address. The prevailing Party in any action related to or arising under this Agreement shall be entitled to reasonable attorneys’ fees and costs.
13.3.1 For any Dispute in which the amount in controversy is at least One Million Dollars ($1,000,000), the following additional procedures apply:
(a) a certified court reporter shall transcribe the arbitration hearings; The Parties initially split the cost of the reporter, but such costs shall ultimately be awarded to the Party prevailing in the arbitration proceeding; and
(b) either Party may take an appeal from the final decision by making a written demand within twenty (20) days of the award.
13.3.2 Any such appeal shall be conducted as follows:
(a) such appeals are limited to issues of Law (i.e., the original award (1) contains material errors of Law such that the original award is not founded on any appropriate legal basis; (2) is based on factual findings clearly unsupported by the record; or (3) is subject to one or more grounds set forth in Section 10 of the Federal Arbitration Act or 42 Pa. C.S.A. §7341 for vacating an award);
(b) the Person hearing the appeal shall be a former federal judge mutually agreed to by the Parties or selected through the procedures of the American Arbitration Association. The former judge shall act as the appellate arbitrator;
(c) the submissions on appeal are limited to (1) the record of the arbitration, (2) a 30-page brief by the appellant, (3) a 30-page brief by the appellee and (4) a 10-page response by the appellant. The appellate arbitrator will set the dates for submission of the briefs. Oral argument may be heard at the discretion of the appellate arbitrator;
(d) the appellate arbitrator shall render a written decision within sixty (60) days of the final submission;
(e) during the pendency of the arbitration appeal, the Parties agree to suspend any running of the time to seek enforcement of the original award. The Parties also agree to waive any appeal to state or federal courts based on the grounds set forth in Section 10 of the Federal Arbitration Act for vacating an award and 42 Pa. C.S.A. § 7341;
(f) the appellate arbitrator must award costs and attorneys’ fees to the prevailing Party; and
(g) the decision of the appellate arbitrator shall be final.
13.4 Continued Performance: Each Party acknowledges that the timely and complete performance of its obligations pursuant to this Agreement is critical to the business and operations of the other Party. Accordingly, in the event of a Dispute, each Party shall continue to so perform all of its obligations under this Agreement, in good faith during the resolution of such Dispute unless and until (a) authority to stop doing so is granted or conferred by a court of competent jurisdiction or (b) this Agreement is terminated in accordance with the provisions hereof.
13.5 Equitable Relief: Notwithstanding anything contained in this Agreement to the contrary, the Parties will be entitled to seek injunctive relief, specific performance or other equitable relief whenever the facts or circumstances would permit a Party to seek equitable relief in a court of competent jurisdiction. Without limiting the generality of the foregoing, (a) Evolent agrees that there would be irreparable harm to ABCO in the event of any such breach by Evolent of Section 6.2 and ABCO shall be entitled to (i) injunctive relief to prevent breaches of Section 6.2, (ii) specific performance of this Agreement, and (iii) any other remedies provided by Law or equity, including without limitation an award for damages, and (b) ABCO agrees that there would be irreparable harm to Evolent in the event of any such breach by ABCO of Section 6.1.1, and Evolent shall be entitled to (i) injunctive relief to prevent breaches of Section 6.1.1, (ii) specific performance of this Agreement, and (iii) any other remedies provided by Law or equity, including without limitation an award for damages.
14. MISCELLANEOUS PROVISIONS.
14.1 Good Faith and Mutual Agreement: Unless otherwise expressly stated in such provision, if a provision in this Agreement calls for the consent of a Party or the mutual agreement of the Parties, the Parties agree that each will act in good faith, will not unreasonably withhold their consent and that deference shall be given to the other Party’s reasonable business requirements, and the requirements of the Parties’ respective regulators and internal controls procedures.
14.2 Independent Contractor: The relationship of ABCO to Evolent shall at all times be that of an independent contractor. Nothing in this Agreement shall be construed to create any partnership, association, joint venture, or employment between the Parties. Each Party shall have the sole and exclusive control over the labor and employee relations policies and policies relating to wages, hours, working conditions, benefits, or other conditions of its personnel and shall be responsible and liable for the acts and omissions of its employees, agents and contractors.
14.3 Assignability: Evolent has entered into this Agreement because of the expertise of ABCO, and ABCO understands that the obligations of ABCO are personal to ABCO and may not be assigned to any other company, partnership or individual without the express written consent of Evolent; provided, however, that no consent shall be required if an assignment is made in connection with a sale of all or substantially all of ABCO’s assets or stock, or in connection with a merger or Change of Control. Evolent may assign this Agreement (including the licenses granted pursuant to this Agreement) to any Affiliate of Evolent as part of an internal reorganization or in connection with a sale of substantially all of its assets or stock, or in connection with a merger or Change of Control.
14.4 Governing Law and Jurisdiction: This Agreement shall be governed by and construed and enforced in accordance with the Laws of the Commonwealth of Pennsylvania, without regard to that state or any other state’s conflicts of law rules. Each Party irrevocably consents to the personal jurisdiction of the state and federal courts located in Wilmington, Delaware for any suit or action arising from or related to this Agreement.
14.5 Force Majeure: Neither Party shall be deemed in default of this Agreement to the extent that performance of their obligations or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, act of government, or any other cause beyond the control of such Party, provided that such Party gives the other Party written notice thereof promptly and, in any event, within fifteen (15) days of discovery thereof, and uses its commercially reasonable efforts to cure any such breach.
14.6 Entire Agreement: This Agreement and its exhibits, schedules, and attachments constitute the entire understanding between the Parties with respect to the subject matter hereof and supersede all prior written or oral representations with respect to the subject matter hereof. This Agreement may not be modified, amended, or otherwise changed in any manner except by a written instrument executed by the Party against whom enforcement is sought.
14.7 Cumulative Remedies: Except as expressly provided in this Agreement, (a) remedies for breach are cumulative and may be exercised separately or concurrently, (b) the exercise of one remedy is not an election of that remedy to the exclusion of others, and (c) the provision for any remedy in this Agreement shall not affect remedies otherwise available at Law or in equity.
14.8 No Third Party Beneficiaries: The Parties do not intend that this Agreement creates any right or cause of action in or on behalf of any Person other than Evolent and ABCO.
14.9 Headings: Section headings have been included in this Agreement merely for convenience of reference. They are not to be considered part of, or to be used in interpreting this Agreement.
14.10 Binding Effect: The covenants and conditions contained herein will apply to and bind the successors, representatives, and permitted assigns of the Parties.
14.11 Expenses: Each Party shall be responsible for its own legal, accounting and other transaction costs relating to the transactions contemplated in this Agreement.
14.12 Notices: All notices required to be given hereunder shall be in writing and given hereunder, as elected by the Party giving notice, as follows: (a) by personal delivery, (b) sent by overnight courier with confirmation of receipt, or (c) dispatched by certified or registered mail, return receipt requested, postage prepaid, addressed to the Parties as follows.
If to Evolent: Evolent, Inc.
800 N. Glebe Road, Suite 500
Arlington, VA 22203
Attention: President
Morgan Lewis & Bockius, LLP
225 Franklin Street
Boston, MA 02110
Attention: Mark B. Stein, Esq.
Fax No.: (617) 341-7701
If to ABCO: The Advisory Board Company
2445 M St. NW
Washington, DC 20037
Attention: General Counsel
Notice shall be deemed given (a) on the date of receipt if delivered personally; (b) on the business day following delivery of such notice to the overnight courier; or (c) three (3) business days after deposit in the mail in accordance with the foregoing. Either Party may change the address to which to send notices by notifying the other Party of such change of address in writing in accordance with the foregoing.
14.13 Press Releases: No press releases or other public announcements concerning the transactions contemplated by this Agreement shall be made by ABCO or Evolent without the prior written consent of both Parties; provided, however, that nothing herein shall prevent a Party from supplying such information or making statements as required by governmental authority or in order for a Party to satisfy its legal obligations (prompt notice of which shall in any such case be given to the other Party).
14.14 Severability: Any terms or provisions of this Agreement that shall prove to be invalid, void or illegal shall in no way affect, impair, or invalidate any other term or provision herein and such remaining terms and provisions shall remain in full force and effect provided that its general purposes are still reasonably capable of being effected. All such terms or provisions which are determined by a court of competent jurisdiction or other dispute resolution proceeding to be invalid, void or illegal shall be construed and limited so as to allow the maximum effect permissible by Law.
14.15 Waiver: The waiver by either Party to this Agreement of any one or more defaults, if any, on the part of the other, shall not be construed to operate as a waiver of any other or future defaults under the same or different terms, conditions or covenants contained in this Agreement.
IN WITNESS WHEREOF, the Parties have executed this Agreement effective as of the date first written above.
THE ADVISORY BOARD COMPANY EVOLENT HEALTH, INC.
/s/ Evan Farber
By: Evan Farber By:
Its: General Counsel Its:
[Signature Page to Amended and Restated Services, Reseller and Non-Competition Agreement]
IN WITNESS WHEREOF, the Parties have executed this Agreement effective as of the date first written above.
THE ADVISORY BOARD COMPANY EVOLENT HEALTH, INC.
/s/ Frank Williams
By: By: Frank Williams
Its: Its: CEO
| Entailment |
622_nda-18 | 622_nda-18_0 | Q: Receiving Party shall not solicit some of Disclosing Party's representatives.
Text: Exhibit 10.16
AMENDED AND RESTATED
SERVICES, RESELLER AND NON-COMPETITION AGREEMENT
THIS AMENDED AND RESTATED SERVICES, RESELLER AND NON-COMPETITION AGREEMENT (this “Agreement”) is made and entered into effective as of June 27, 2013 (the “Effective Date”) by and between The Advisory Board Company, a Delaware corporation (“ABCO”), and Evolent Health, Inc. (f/k/a VPHealth, Inc.), a Delaware corporation (“Evolent”), (each, a “Party”, and collectively, the “Parties”).
RECITALS
WHEREAS, ABCO and Evolent entered into a Services, Reseller and Non-Competition Agreement (the “Original Agreement”), effective as of August 31, 2011 (the “Original Effective Date”);
WHEREAS, since entering into the Original Agreement, Evolent and ABCO have continued to explore ways to improve the efficiency and implementation of their relationship; and
WHEREAS, as a result of the foregoing efforts, the Parties have agreed to amend and restate the Original Agreement as set forth in this Agreement.
NOW, THEREFORE, in consideration of the above recitals, the terms and conditions hereinafter set forth, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto agree as follows:
1. DEFINITIONS. For purposes of this Agreement:
1.1 “ABCO Restricted Products and Services” means (a) care management services including, but not limited to, traditional disease management services, direct patient outreach and other service-based care management offerings (e.g., readmissions management teams, nurse call centers, on-site care management teams); (b) care management workflow software designed for and used by provider-owned payor organizations or other entities intending to conduct active care management campaigns targeted at managing population health/longitudinal outcomes (i.e, solutions that are the same as or substantially similar to (i.e. functionality that is redundant in substantial and material respects with) HealthPlaNet); (c) services primarily intended to support cost reduction and benefit changes for health system employees; (d) consulting services comparable and competitive with blueprint consulting services offered by Evolent as of the Effective Date (“Blueprint Services”), (e) Exclusive TPA Services or (f) Crimson Care Registry products. For the avoidance of doubt, Restricted Products and Services does not include behavioral health-related services or software (e.g., Askesis Development Group software), services similar to those offered by UPMC WorkPartners (e.g., “Take-a-Healthy-Step” or similar health and wellness programs, occupational medicine, on-site clinic implementation and administration, employee assistance services, absence management or workers’ compensation services), or software or solutions similar to those offered by EBenefits Solutions, LLC.
1.2 “Active Sales Process”, with respect to any Person as of any date on which Evolent proposes to add such Person to the list of Evolent Top Prospects, means such Person (a) is not an Evolent Client as of such date and (b) either (i) has purchased ABCO Restricted Products and Services from ABCO prior to such date or (b) was engaged in active discussions with ABCO about acquiring ABCO Restricted Products and Services (including, but not limited to, a review of the applicable offering of ABCO Restricted Products and Services) as of such date.
1.3 “Affiliate” means any Person which Controls, is Controlled by, or is in common Control with, another Person.
1.4 “Business Plan” has the meaning set forth in that certain Intellectual Property License and Data Access Agreement between the Parties.
1.5 “Change of Control” with respect to any entity means a transaction or series of related transactions in which a Person, or a group of related Persons, acquires from stockholders of the subject entity, the entity’s shares representing more than fifty percent (50%) of the outstanding voting power of such entity.
1.6 “Confidential Information” means any and all technical and non-technical information, whether conveyed verbally, in writing, electronically or by any other means, including, but not limited to, trade secrets, source code, technology, know-how and proprietary information, techniques, plans or any other information relating to any research project, analysis, work in process, future development, scientific, engineering, marketing or business plans or financial, contractual or personnel matters relating to either Party or its present or future products, services, sales, suppliers, identity of and information relating to customers and prospective customers, customer or prospect list, prospective employees, investors or affiliates or other proprietary information disclosed or otherwise supplied in confidence by either Party to the other, to the extent that such information is provided pursuant to this Agreement by one Party to the other Party and is marked “confidential” or “proprietary” or that should be reasonably understood by the Receiving Party (based on the nature of the information or the context in which the information is disclosed) should be considered confidential. Confidential Information will not include information to the extent that: (a) such information is or becomes publicly available other than through any act or omission of either Party in breach of this Agreement; (b) such information was received by the Receiving Party, other than under an obligation of confidentiality, from a third party who had no obligation of confidentiality to the other Party; (c) such information was in the possession of the Receiving Party at the time of the disclosure or was independently developed by the Receiving Party, as reflected by the Receiving Party’s internal, written and dated documentation; or (d) an applicable regulation, court order or other legal process requires the disclosure of such information, provided that prior to such disclosure the Disclosing Party will give notice to the other Party so that the other Party may take reasonable steps to oppose or limit such disclosure, so that the Disclosing Party does not disclose any more information than necessary to comply with such legal process. The burden of proof that Confidential Information falls into any one of the above exemptions will be borne by the Party claiming such exemption with documentation or other credible evidence.
1.7 “Control” as used with respect to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities, by agreement or otherwise.
1.8 “Evolent Clients” means entities under a current contract with Evolent for an implementation and/or long-term services contract. 1.9 “Evolent Top Prospects” means, as of any date, up to twenty (20) potential Evolent customers in the Evolent sales pipeline identified by Evolent that are not Evolent Clients as of such date, and (a) are engaged in active discussions with Evolent regarding purchasing Evolent products and services and/or (b) are under a current contract with Evolent for Blueprint Services or other services that do not constitute implementation or long-term services; provided, however, that (i) the list of such potential Evolent customers may be updated by Evolent on a quarterly basis, and ABCO shall have the opportunity upon receipt of each such quarterly update to notify Evolent if any of the Persons added to such list are in an Active Sales Process with ABCO and shall therefore be removed from such list, and (ii) no Person shall remain on the list of Evolent Top Prospects for more than (x) twelve (12) consecutive months, in the case of potential Evolent customers without a signed agreement with Evolent, or (y) twenty-four (24) consecutive months, in the case of potential Evolent Clients that signed an agreement for Blueprint Services with Evolent before or within twelve (12) months of being added to the list of Evolent Top Prospects.
1.10 “Exclusive TPA Services” means certain services as set forth on Schedule 1 of the UPMC Reseller Agreement (as in effect on the Effective Date), to the extent that UPMC Health Plan, Inc., a Pennsylvania nonprofit corporation (“UPMC”), has the exclusive right to provide such services to Evolent, for resale by Evolent to its customers.
1.11 “Disclosing Party” means a Party that provides Confidential Information to the other Party, or the other Party’s Affiliates.
1.12 “Governmental Authority” means any federal, state, municipal, local, territorial, or other governmental department, regulatory authority, judicial or administrative body, whether domestic, foreign or international.
1.13 “Law” means all international, federal, country, state, provincial, local and other laws, rules and regulations, declaration, decree, directive, legislative enactment, order, code, ordinance, regulation, rule or other binding restriction of or by any Governmental Authority, as the same are promulgated, supplemented or amended from time to time.
1.14 “Loss” individually, and collectively, “Losses” means all claims, liabilities, obligations, losses, costs, expenses (including, without limitation, legal, accounting and similar expenses), litigation, proceedings, fines, taxes, levies, imposts, duties, deficiencies, assessments, charges, penalties, allegations, demands, damages (including, but not limited to, actual, punitive or consequential, foreseen or unforeseen, known or unknown, fixed or contingent, and matured or unmatured), civil and criminal violations of Law, settlements and judgments of any kind or nature whatsoever.
1.15 “Person” means any individual, corporation, partnership, firm, joint venture, association, limited liability company, limited liability partnership, joint-stock company, trust, joint venture, unincorporated organization, governmental, judicial or regulatory body, business unit, division or any other business entity, organization or Governmental Authority.
1.16 “Receiving Party” means a Party that receives Confidential Information from the other Party or the other Party’s Affiliates.
1.17 “Statement of Work” or “SOW” means an agreement by and between ABCO and Evolent that contains the detailed description of services, scope, specifications, pricing, implementation plan, timetables, milestones, and other terms and conditions for each procurement of services, as applicable.
1.18 “UPMC Reseller Agreement” means that certain Second Amended and Restated Reseller, Services and Non-Competition Agreement between UPMC and Evolent dated as of [the Effective Date].
2. SERVICES TO BE PROVIDED BY ABCO.
2.1 General Services:
2.1.1 Minimum Purchase. The Parties hereby acknowledge and agree that Evolent has purchased from ABCO a minimum of Two Hundred Thousand Dollars ($200,000) of services (as described in Section 2.2.1) (the “Original Minimum Purchase”) for delivery between the Original Effective Date and the first anniversary thereof.
2.1.2 Statements of Work. The specific description, price, service levels (if applicable) and other project, service, and/or customer-specific terms for a particular service that may be provided by ABCO to Evolent (each, a “Service”, and collectively, the “Services”) shall be set forth in a Statement of Work that will be created on a project by project basis.
2.2 Right of First Offer and Process for Invoking:
2.2.1 Applicable Services. Throughout the Term, ABCO shall have the right of first offer to provide the following services to Evolent and Evolent’s customers:
(a) Physician practice management consulting and other physician practice management services;
(b) Physician incentive design services;
(c) Medical home development consulting services; and
(d) Performance analytics shared with physicians with the intent to improve outcomes.
2.2.2 Process for Exercising Right of First Offer. Evolent shall notify ABCO in writing in the event Evolent desires to receive any of the above services (“First Offer Services”). ABCO shall have a period of thirty (30) days (“First Offer Services Evaluation Period”) within which to conduct its evaluation and diligence with respect to providing such First Offer Services. Evolent shall cooperate with ABCO and provide reasonable assistance and information to ABCO to enable ABCO to conduct its evaluation. Within five (5) business days after the expiration of such First Offer Services Evaluation Period, ABCO shall notify Evolent in writing whether or not it wishes to provide such services to Evolent. If ABCO elects to provide such First Offer Services, Evolent agrees to engage in good faith negotiations with ABCO, on an exclusive basis for a period of sixty (60) days, regarding the specific terms covering such First Offer Services.
2.3 Failure to Execute a Service Agreement for the VBC Innovation Center: The Parties acknowledge and agree that it was their intent as of the Original Effective Date to enter into a service agreement under which Evolent would engage ABCO to provide certain consulting, development and support services in connection with the creation, launch, implementation and ongoing support of a Value-Based Care Innovation Center (the “VBC Innovation Center”), in consideration for which Evolent would pay ABCO a fixed fee of Eight Hundred Thousand Dollars ($800,000) per year (“Fixed Fee”) for each of the first two (2) years of the term of such VBC Innovation Center service agreement. The Parties acknowledge and agree that, notwithstanding the fact that they negotiated with diligence and in good faith the specific terms and conditions of such service agreement, the Parties were unable to reach an agreement with respect to the VBC Innovation Center. Accordingly, the Original Minimum Purchase is increased to One Million Two Hundred Thousand Dollars ($1,200,000) (the “Minimum Purchase”) as follows: (a) between the Original Effective Date and the second anniversary thereof, Evolent shall have purchased from ABCO a minimum of Seven Hundred Thousand Dollars ($700,000) of services for delivery on or prior to such second anniversary of the Original Effective Date), and (b) inclusive of the purchases described in clause (a), between the Original Effective Date and the third anniversary thereof, Evolent shall have purchased from ABCO a minimum of One Million Two Hundred Thousand Dollars ($1,200,000) of services for delivery on or prior to such third anniversary of the Original Effective Date); provided that, for purposes of this sentence, “services” shall include consulting, software, professional or analytic services provided from time to time by ABCO to Evolent (other than services in connection with the provision of any office space by or on behalf of ABCO to Evolent) or, pursuant to a joint written proposal by ABCO and Evolent, to any Evolent Client.
2.4 Reservation of Rights: For the avoidance of doubt, Evolent is not precluded from offering and providing services directly to its customers, subject (a) to (i.e., after ABCO has had the full opportunity to exercise) ABCO’s right of first offer to provide any First Offer Services in accordance with Section 2.2) and (b) to Evolent’s compliance with its non-competition obligations as set forth in Section 6.2.
2.5 Designation of Relationship Managers: In order to support the launch and ongoing success of the exclusive reseller relationship between ABCO and Evolent, each Party agrees to designate a senior level individual who will serve as the primary liaison and “go to” contact and relationship manager for such Party (each, a “Relationship Manager”). Each Party’s Relationship Manager’s role and responsibilities would include: (a) facilitating day-to-day communications between the Parties regarding customer-facing activities, such as marketing, promotional and sales activities and preparing and submitting bids, proposals, responses to requests for proposals, fee estimates, Statements of Work and project plans; (b) receiving and submitting requests between the Parties for information and/or assistance; (c) overseeing the efficient knowledge transfer and flow of information between the Parties; (d) facilitating communications between the appropriate individuals within Evolent and ABCO, with respect to product and service offering development; and (e) providing the first level of performance review or escalation in the event of a Dispute as provided in Section 13. The Relationship Managers will meet regularly, but no less frequently than monthly, as reasonably necessary, to maintain a good working relationship between the Parties. Each Party may change its Relationship Manager by giving the other Party reasonable notice as long as the change is implemented in a manner that does not cause any significant disruption to each Party’s business operations and business relationship.
3. FEES; PAYMENT TERMS; SHORTFALL.
3.1 Fees; Timing of Payments: Evolent shall pay ABCO the applicable fees for the Services performed by ABCO pursuant to a Statement of Work, as follows: (a) unless the Parties otherwise agree in writing, a deposit of 50% of the total fees for the particular project shall be paid upon signing of the Statement of Work; (b) ABCO will submit an invoice to Evolent for the balance upon completion of the work; and (c) Evolent shall pay ABCO for such invoiced amount within thirty (30) days after receipt of such invoice.
3.2 Minimum Purchase and Shortfall: Evolent agrees to pay ABCO the Minimum Purchase. If the aggregate amount of Services actually procured by Evolent from ABCO is not equal to or greater than (a) Seven Hundred Thousand Dollars ($700,000) of services for delivery on or prior to the second anniversary of the Original Effective Date or (b) inclusive of the purchase described in clause (a), the Minimum Purchase of services for delivery on or prior to the third anniversary of the Original Effective Date, Evolent shall pay ABCO the amount of the shortfall (i.e., the difference between Seven Hundred Thousand Dollars ($700,000) or the Minimum Purchase amount, as applicable, less the sum of: (a) the aggregate fees for the actual amount of Services procured; and (b) any Credits (as provided in the next sentence) (the “Shortfall”), if any, on or before August 31, 2013 or August 31, 2014, as applicable. In the event that ABCO refuses or fails, without reasonable cause, to provide any of the Services requested by Evolent (provided the scope of the Services requested is within the scope customarily provided by ABCO), the fees that would otherwise have been applicable had ABCO agreed to provide such Services would count as a “Credit”. As of the date hereof, no such Credits have accrued.
4. TERM AND RENEWAL. The initial term of this Agreement shall commence on the Effective Date and unless sooner terminated in accordance with the terms hereof, shall continue until August 31, 2016 (“Initial Term”). Thereafter, this Agreement shall automatically be renewed for another five-year term (“Renewal Term”) unless either Party elects to terminate this Agreement by providing the other Party with written notice of termination one hundred eighty (180) days prior to the expiration of the current term. (“Initial Term” and “Renewal Term” collectively, the “Term”).
5. REFERRAL FEES, SOLICITATION AND COMPETITION AND POST-CLOSING SERVICES.
5.1 Referral Fees:
5.1.1 During the Term, ABCO will pay Evolent a sales referral fee for any sale made by ABCO that resulted from a “net” new sale from a new customer that was not already in ABCO’s sales pipeline (i.e., a “warm lead”) or a then-current customer of ABCO generated directly by Evolent’s efforts and without any assistance from any ABCO employee or representative (including any Evolent employee that serves on the Board of Directors of ABCO), equal to 5% of the total ABCO revenue from the new customer during the initial twelve (12) months of services under the services agreement with such new customer.
5.1.2 During the Term, Evolent will pay ABCO a sales referral fee for any sale made by Evolent that resulted from a “net” new sale from a new customer that was not already in Evolent’s sales pipeline (i.e., a “warm lead”) or a then-current customer of Evolent generated directly by ABCO’s efforts and without any assistance from any Evolent employee or representative (including any ABCO employee that serves on the Board of Directors of Evolent), in accordance with the following terms:
(a) ABCO will receive a one-time referral fee for any “employee health” diagnostic, consulting or broker services provided by Evolent to a Covered Health System, equal to the lesser of $20,000 or 5% of the total Evolent revenue from the Covered Health System during the initial twelve (12) months of services under the service agreement with such Covered Health System.
(b) ABCO will receive $50,000 per year for three (3) years for each health system joining Evolent as an Employee Health Platform Customer. An “Employee Health Platform Customer” is defined as a health system purchasing diagnostic/consulting services and ongoing medical management/health plan services (i.e., care management, HealthPlaNet care management application, and the TPA platform, etc.).
(c) ABCO will receive $100,000 per year for three (3) years for a health system joining Evolent as a Platform Health Plan Customer. A “Platform Health Plan Customer” is defined as a health system purchasing ongoing medical management services, ongoing health plan outsourcing services (i.e., TPA) and health plan management services for purposes of a licensed insurance entity with at least fifty thousand (50,000) lives (beyond the employee population).
(d) With the exception of making the introduction (either through an email or an in-person meeting) (to generate the “warm lead”), ABCO would not be expected to perform any actual duties or incur actual cost to receive a referral fee.
(e) The annual referral fees for each referral would be capped at the lesser of (x) 5% of annual revenue generated by Evolent for the respective customer and (y) the $50,000 or $100,000 figures described above, as applicable.
6. SOLICITATION AND COMPETITION.
6.1 Scope:
6.1.1 Throughout the Term, ABCO agrees not to offer any ABCO Restricted Products and Services to (a) any Evolent Clients or (b) any Evolent Top Prospects; provided, however, that ABCO shall not be restricted from making any such offer to any Evolent Top Prospect or Evolent Client with whom ABCO was, at the time such Person was identified as an Evolent Top Prospect or became an Evolent Client, engaged in an Active Sales Process. The foregoing restrictions shall not apply in the event of a Change of Control of Evolent or in the event that ABCO ceases to be a shareholder of Evolent.
6.1.2 None of the foregoing would prohibit ABCO from:
(a) Marketing, offering, licensing or selling versions of any of its Crimson Population Risk Management products, or the successors to any such products, provided that such products, or the successors to any such products, are not the same as or substantially similar to (i.e., includes functionality that is redundant in substantial and material respects with) HealthPlaNet as it exists as of the Effective Date.
(b) Supporting employers with care management related best practices and research.
(c) Offering traditional “dedicated advisor” support in conjunction with ABCO’s traditional business intelligence offerings.
(d) Marketing, offering, licensing or selling its employer health product.
(e) Providing physician management consulting and other physician management services.
6.2 Restrictions Relating to Certain ABCO Products and Services: Evolent shall not, until the earlier of (x) ABCO’s ceasing to be a shareholder of Evolent or (y) the seventh (7 ) anniversary of the date of this Agreement, promote, market, provide, offer or sellth (a) unbundled software applications, software tools or other similar technologies (including, without limitation, software as a service, analytics technology or data services) (each, a “Technology Solution”), (b) consulting services that are not intended to lead to or be a part of a Blueprint Services engagement, implementation contract and/or long-term services contract, or (c) any best practices membership programs or unbundled or bundled physician practice management and other physician practice management consulting services, in each case referred to in this clause (c) that are substantially similar to, or that are competitive with, ABCO’s best practices membership programs or physician practice management or other physician practice management consulting services that are offered by ABCO as of the date first written above. For the avoidance of doubt, “unbundled” means on a stand-alone basis, instead of “bundled”, which contemplates that the Technology Solution is both (i) offered as part of a “packaged”, integrated offering, in conjunction with other Evolent products or services that are not Technology Solutions (and not only services that constitute customary software, data and end user support-related services), such as the Exclusive TPA Services, and (ii) incidental to the provision of such other Evolent products or services. Notwithstanding any other provision hereof, the foregoing restrictions in this Section 6.2 shall survive a Change of Control of Evolent for seven (7) years from the date of this Agreement; provided, however, that prior to the seventh (7 ) anniversary of the date of thisth Agreement, the acquiring party in a Change of Control of Evolent shall be not be subject to the foregoing restrictions with respect to any Technology Solutions or consulting services, in each case, that are unrelated to the Evolent assets acquired.
6.3 Non-Solicitation or Hiring: During the Term and for a period of eighteen (18) months thereafter, Evolent shall not solicit or hire any of ABCO’s employees without ABCO’s prior written consent.
7. EXCLUSIVE RESELLER RIGHTS FOR FUTURE PRODUCTS.
In the event that Evolent creates a discrete or segregable product or service that can be sold to healthcare providers, Evolent shall notify ABCO in writing of such new offerings (“New Products”). ABCO shall have a period of ninety (90) days (“New Products Evaluation Period”) within which to conduct its evaluation and diligence with respect to providing such New Products. Evolent shall cooperate with ABCO and provide reasonable assistance and information to ABCO to enable ABCO to conduct its evaluation. Within five (5) business days after the expiration of such New Products Evaluation Period, ABCO shall notify Evolent in writing whether or not it wishes to have the right to resell such New Products. If ABCO elects to resell such New Products, Evolent and ABCO agree to negotiate in good faith on an exclusive basis for one hundred twenty (120) days the terms of a reseller agreement, under which ABCO would be the exclusive distributor (in addition to Evolent) of such New Products.
8. CONFIDENTIALITY.
8.1 Confidential Information: ABCO acknowledges that in connection with its rights and obligations under this Agreement it may gain access to the Confidential Information of Evolent and its customers and Affiliates. Evolent acknowledges that in connection with its rights and obligations under this Agreement, it may gain access to the Confidential Information of ABCO and its customers and Affiliates.
8.2 Non-Disclosure: The Receiving Party may disclose the Disclosing Party’s Confidential Information strictly on a need-to-know basis to only those personnel, including employees of the Receiving Party’s contractors, who require access to the Disclosing Party’s Confidential Information in order to perform or derive benefit from the Services or otherwise meet its obligations under this Agreement. The Receiving Party agrees: (a) to hold the Disclosing Party’s Confidential Information in strict confidence, using the same degree (but no less than a reasonable degree) of care and protection that it exercises with its own Confidential Information of a similar nature; (b) not to directly or indirectly disclose or otherwise make available any Confidential Information of the Disclosing Party to a third party; and (c) not to copy or use the Disclosing Party’s Confidential Information for any purpose other than as necessary to fulfill the Receiving Party’s obligations or exercise its rights under this Agreement. Each Receiving Party is responsible for ensuring that its employees, agents and contractors strictly abide by the requirements of confidentiality and restrictions on use as provided in this Section 8.2 and shall be liable to the Disclosing Party for any acts or omissions of its employees, agents and independent contractors relating to the Disclosing Party’s Confidential Information. The Receiving Party is allowed to disclose Confidential Information of the Disclosing Party to the extent required by Law or by the order or a court of similar judicial or administrative body with jurisdiction, provided that the Receiving Party notifies the Disclosing Party of such required disclosure promptly and in writing and cooperates with the Disclosing Party, at the Disclosing Party’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure. The provisions of this Section 8 shall survive beyond the expiration or termination of this Agreement.
8.3 Injunctive Relief: The Parties acknowledge and agree that monetary damages may be inadequate to compensate for a breach of the provisions contained in this Section 8 or other confidentiality provisions of this Agreement. In the event of such breach, the injured Party shall be entitled to seek injunctive relief (without the need to post bond) and any and all other remedies available at Law or in equity. This Section 8.3 in no way limits the liability or damages that may be assessed against a Party in the event of a breach by the other Party of any of the provisions of this Section 8.
8.4 Residuals: Notwithstanding anything in this Section 8 to the contrary, subject to any applicable statutory intellectual property rights applicable to patents, trademarks or copyrights, either Party may use “Residuals” for any purpose, including without limitation, for use in development, manufacture, promotion, sale and maintenance of its products and services; provided, however, that this right to Residuals does not represent a license under any patents, copyrights or trademarks of the Disclosing Party. The term “Residuals” means any information that is retained in the unaided memories of the Receiving Party’s employees who have had access to the Disclosing Party’s Confidential Information pursuant to the terms of this Agreement.
9. WARRANTIES.
9.1 Authority/No Conflict: ABCO represents and warrants that (a) it has the power and authority to enter into and perform its obligations under this Agreement without conflict with, default under, or violation of any Law, regulation, or agreement binding upon it, and (b) this Agreement has been duly authorized by all necessary organizational action, and duly and validly executed and delivered by it, and constitutes its legally valid and binding obligation, enforceable in accordance with its terms.
9.2 Services: ABCO represents, warrants and covenants that the Services provided under this Agreement will be performed in a professional and workmanlike manner.
9.3 Compliance with Laws/Approvals: Each of ABCO and Evolent shall comply in all material respects with all Laws and regulations applicable to ABCO or Evolent, as applicable, in performing its obligations under this Agreement. To the extent applicable, ABCO shall be responsible for obtaining all necessary permits, licenses, and consents, including governmental approvals, required of ABCO and its contractors in connection with the performance of its obligations under this Agreement, and Evolent shall be responsible for obtaining all necessary permits, licenses, and consents, including governmental approvals, required of Evolent and its contractors in connection with the performance of its obligations under this Agreement.
9.4 Limitations of Warranty: EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, ABCO MAKES NO OTHER WARRANTY OR REPRESENTATION, ORAL, WRITTEN, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE SERVICES, INCLUDING WITHOUT LIMITATION, THEIR QUALITY, PERFORMANCE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, UNINTERRUPTED OR ERROR-FREE OPERATION OR OTHERWISE HEREUNDER. The disclaimer of warranties and limitations set forth in this Agreement constitute an essential part of this Agreement.
10. INDEMNIFICATION.
10.1 IP Indemnification: ABCO shall defend, indemnify and hold harmless Evolent and its Affiliates (other than ABCO), customers, and their respective officers, directors and employees from and against any Losses resulting from a claim that the Services provided by ABCO under this Agreement infringes or misappropriates a third party’s intellectual property rights. ABCO shall also use commercially reasonable efforts to modify the allegedly infringing Services to make it non-infringing, procure a license from the third party claiming infringement to permit Evolent to continue to use the Services, or provide Evolent with functionally equivalent and non-infringing Services. THIS SECTION 10.1 SETS FORTH ABCO’S SOLE AND EXCLUSIVE LIABILITY, AND EVOLENT’S SOLE AND EXCLUSIVE REMEDY, FOR ALLEGATIONS OR CLAIMS OF INFRINGEMENT OF THIRD PARTY RIGHTS OF ANY KIND ASSERTED AGAINST EVOLENT, ITS AFFILIATES (OTHER THAN ABCO), CUSTOMERS AND THEIR RESPECTIVE OFFICERS, DIRECTORS AND EMPLOYEES. ABCO shall not be obligated to indemnify Evolent, its Affiliates, customers, and their respective officers, directors and employees for infringement or misappropriation claims to the extent such claims arise out of use by Evolent or its customers of any of the Services in a manner other than as contemplated by the Parties under this Agreement.
10.2 ABCO’s Indemnification: ABCO hereby agrees to indemnify, defend, and hold Evolent and its Affiliates (other than ABCO), and all of their respective directors, officers, members, managers, partners, employees, agents, successors and assigns, harmless from and against any Losses arising from or related to: (a) the material breach of this Agreement, including any or all SOWs, by ABCO or its personnel (including contractors); (b) breach of any of ABCO’s representations, warranties, and covenants in this Agreement; or (c) negligence or willful misconduct by ABCO or its personnel (including contractors).
10.3 Evolent’s Indemnification: Evolent hereby agrees to indemnify, defend, and hold ABCO and its Affiliates (other than Evolent), and all of their respective directors, officers, members, managers, partners, employees, agents, successors and assigns, harmless from and against any Losses arising from or related to: (a) the material breach of this Agreement, including any or all SOWS, by Evolent or its personnel (including contractors); (b) breach of any of Evolent’s representations, warranties and covenants in this Agreement; or (c) negligence or willful misconduct by Evolent or its personnel (including contractors).
10.4 Indemnification Procedure:
10.4.1 Notice of Claim. Any Party seeking indemnification hereunder (the “Indemnitee”) shall notify the Party liable for such indemnification (the “Indemnitor”) in writing of any event, omission or occurrence that the Indemnitee has determined has given or could give rise to Losses that are indemnifiable hereunder (such written notice being hereinafter referred to as a “Notice of Claims”). Such Notice of Claims shall be given promptly after the Indemnitee becomes aware of its own claim or that of a third party; provided that the failure of any Indemnitee to give notice as provided in this Section 10.4.1 shall not relieve the Indemnitor of its obligations under this Section 10. A Notice of Claims shall specify in reasonable detail the nature and any particulars of the event, omission, or occurrence giving rise to a right of indemnification. The Indemnitor shall satisfy its obligations hereunder, as the case may be, within thirty (30) days of its receipt of a Notice of Claims.
10.4.2 Process. With respect to any third party claim, demand, suit, action, or proceeding that is the subject of a Notice of Claim, the Indemnitor shall, in good faith and at its own expense, defend, contest, or otherwise protect against any such claim, demand, suit, action, or proceeding with legal counsel of its own selection (and reasonably acceptable to the Indemnitee). The Indemnitee shall have the right, but not the obligation, to participate, at its own expense, in the defense thereof through counsel of its own choice and shall have the right, but not the obligation, to assert any and all cross claims or counterclaims it may have. So long as the Indemnitor is defending in good faith any such third party claim, demand, suit, action or proceeding, the Indemnitee shall at all times cooperate, at its own expense, in all reasonable ways with, make its relevant files and records available for inspection and copying by, and make its employees available or otherwise render reasonable assistance to, the Indemnitor. In the event that the Indemnitor fails to timely defend, contest or otherwise protect against any such third party claim, demand, suit, action, or proceeding, the Indemnitee shall have the right, but not the obligation, to defend, contest, assert cross claims or counterclaims, or otherwise protect against, the same and may make any compromise or settlement thereof and be entitled to all amounts paid as a result of such third party claim, demand, suit, or action or any compromise or settlement thereof. The Indemnitor will not consent to the entry of any judgment or enter into any settlement with respect to any such third party claim, demand, suit, action or proceeding without the prior written consent of the Indemnitee, which will not be unreasonably withheld, and provided that no settlement shall require the Indemnitee to admit liability, or perform or become subject to additional obligations thereunder.
11. LIMITS OF LIABILITY. EXCEPT WITH RESPECT TO OR BREACH BY EITHER PARTY OF THE OTHER PARTY’S CONFIDENTIAL INFORMATION UNDER SECTION 8,
NEITHER EVOLENT NOR ABCO SHALL BE LIABLE FOR, NOR WILL THE MEASURE OF DAMAGES INCLUDE, ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OR AMOUNTS INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF INCOME, PROFITS, OR SAVINGS, LOSS OF DATA, OR COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES, ARISING OUT OF OR RELATING TO ITS PERFORMANCE UNDER THIS AGREEMENT UNDER ANY CAUSE OF ACTION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL EITHER PARTY’S LIABILITY EXCEED THE AMOUNT OF REVENUE ACTUALLY RECEIVED BY ABCO IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO THE CLAIM.
12. TERMINATION.
12.1 Termination for Cause: Either Party shall have the right to terminate this Agreement in the event the other Party materially violates a material provision of this Agreement and such violation is not cured or cannot be cured within thirty (30) days after written notice of such material violation.
12.2 Survival: The rights and obligations contained in Sections 1, 5 (with respect to Evolent’s payment obligations that may extend beyond the Term), 6.2, 6.3, 8, 9.4, 10, 11, 12.2, 13 and 14 shall survive any termination or expiration of this Agreement.
13. ESCALATION; DISPUTE RESOLUTION. Subject to the terms of Section 13.5, the procedures of this Section 13 will control the resolution of any and all disputes between the Parties including, without limitation, any dispute relating to disputed monies owing or breach of warranty (each, a “Dispute”). The Parties will seek to resolve each Dispute as follows:
13.1 First Level Performance Review: Each Party’s Relationship Manager will meet as often as will reasonably be required by either Party to review the performance of either Party under this Agreement and to resolve the Dispute. If these representatives are unable to resolve the Dispute within ten (10) business days after the initial request for a meeting, then the Parties will submit the Dispute to an executive level performance review as provided in Section 13.2 below.
13.2 Executive Level Performance Review: Face-to-face negotiations will be conducted by a senior executive officer of each Party (or such other executive as a Party may designate). If these representatives are unable to resolve the Dispute within five (5) business days after the Parties have commenced negotiations or ten (10) business days have passed since the initial request for a meeting at this level, then the Parties may jointly engage the services of a third-party mediator.
13.3 Arbitration: If the Parties are unable to resolve the Dispute through the alternative mechanisms described above, the Parties shall submit the Dispute for resolution through binding arbitration, except as otherwise provided in Section 13.5. The Parties agree and consent to such arbitration proceeding taking place in Wilmington, Delaware, and in accordance with the Commercial Arbitration Rules of the American Arbitration Association, except that discovery may be had in accordance with the Federal Rules of Civil Procedure. The Parties shall be permitted at least six (6) months from the date of the filing of the Arbitration Demand to conduct discovery. The arbitration proceedings shall be conducted by a panel of three (3) impartial arbitrators, with each Party selecting one (1) of the impartial arbitrators and those two (2) arbitrators then selecting the third impartial arbitrator, all such selections to be made through the procedures of the American Arbitration Association. At least one (1) arbitrator must be an attorney licensed under the Laws of Pennsylvania and at least one (1) arbitrator (may be the same Person as the Pennsylvania attorney) must have direct and substantial experience in the industry pertinent to the subject matter of the Dispute. Judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof; provided, however, in rendering its decision, the arbitrators shall be bound by the Laws of the Commonwealth of Pennsylvania (without regard to its conflicts of laws provisions) and by the terms and conditions of this Agreement setting forth the rights and responsibilities of the Parties. The decision of the arbitration panel shall be accompanied by a written opinion setting forth the factual and legal bases for the award. The arbitrators shall issue such written decision within thirty (30) days of the conclusion of the arbitration hearing. The arbitrators appointed hereunder shall not have the power to award punitive damages. Service of a petition to confirm the arbitration award may be made by United States mail, postage prepaid, or by any regularly conducted commercial express mail service, to the attorney for the Party or, if not so represented, to the Party at the address set forth herein, or to the Party’s last known business address. The prevailing Party in any action related to or arising under this Agreement shall be entitled to reasonable attorneys’ fees and costs.
13.3.1 For any Dispute in which the amount in controversy is at least One Million Dollars ($1,000,000), the following additional procedures apply:
(a) a certified court reporter shall transcribe the arbitration hearings; The Parties initially split the cost of the reporter, but such costs shall ultimately be awarded to the Party prevailing in the arbitration proceeding; and
(b) either Party may take an appeal from the final decision by making a written demand within twenty (20) days of the award.
13.3.2 Any such appeal shall be conducted as follows:
(a) such appeals are limited to issues of Law (i.e., the original award (1) contains material errors of Law such that the original award is not founded on any appropriate legal basis; (2) is based on factual findings clearly unsupported by the record; or (3) is subject to one or more grounds set forth in Section 10 of the Federal Arbitration Act or 42 Pa. C.S.A. §7341 for vacating an award);
(b) the Person hearing the appeal shall be a former federal judge mutually agreed to by the Parties or selected through the procedures of the American Arbitration Association. The former judge shall act as the appellate arbitrator;
(c) the submissions on appeal are limited to (1) the record of the arbitration, (2) a 30-page brief by the appellant, (3) a 30-page brief by the appellee and (4) a 10-page response by the appellant. The appellate arbitrator will set the dates for submission of the briefs. Oral argument may be heard at the discretion of the appellate arbitrator;
(d) the appellate arbitrator shall render a written decision within sixty (60) days of the final submission;
(e) during the pendency of the arbitration appeal, the Parties agree to suspend any running of the time to seek enforcement of the original award. The Parties also agree to waive any appeal to state or federal courts based on the grounds set forth in Section 10 of the Federal Arbitration Act for vacating an award and 42 Pa. C.S.A. § 7341;
(f) the appellate arbitrator must award costs and attorneys’ fees to the prevailing Party; and
(g) the decision of the appellate arbitrator shall be final.
13.4 Continued Performance: Each Party acknowledges that the timely and complete performance of its obligations pursuant to this Agreement is critical to the business and operations of the other Party. Accordingly, in the event of a Dispute, each Party shall continue to so perform all of its obligations under this Agreement, in good faith during the resolution of such Dispute unless and until (a) authority to stop doing so is granted or conferred by a court of competent jurisdiction or (b) this Agreement is terminated in accordance with the provisions hereof.
13.5 Equitable Relief: Notwithstanding anything contained in this Agreement to the contrary, the Parties will be entitled to seek injunctive relief, specific performance or other equitable relief whenever the facts or circumstances would permit a Party to seek equitable relief in a court of competent jurisdiction. Without limiting the generality of the foregoing, (a) Evolent agrees that there would be irreparable harm to ABCO in the event of any such breach by Evolent of Section 6.2 and ABCO shall be entitled to (i) injunctive relief to prevent breaches of Section 6.2, (ii) specific performance of this Agreement, and (iii) any other remedies provided by Law or equity, including without limitation an award for damages, and (b) ABCO agrees that there would be irreparable harm to Evolent in the event of any such breach by ABCO of Section 6.1.1, and Evolent shall be entitled to (i) injunctive relief to prevent breaches of Section 6.1.1, (ii) specific performance of this Agreement, and (iii) any other remedies provided by Law or equity, including without limitation an award for damages.
14. MISCELLANEOUS PROVISIONS.
14.1 Good Faith and Mutual Agreement: Unless otherwise expressly stated in such provision, if a provision in this Agreement calls for the consent of a Party or the mutual agreement of the Parties, the Parties agree that each will act in good faith, will not unreasonably withhold their consent and that deference shall be given to the other Party’s reasonable business requirements, and the requirements of the Parties’ respective regulators and internal controls procedures.
14.2 Independent Contractor: The relationship of ABCO to Evolent shall at all times be that of an independent contractor. Nothing in this Agreement shall be construed to create any partnership, association, joint venture, or employment between the Parties. Each Party shall have the sole and exclusive control over the labor and employee relations policies and policies relating to wages, hours, working conditions, benefits, or other conditions of its personnel and shall be responsible and liable for the acts and omissions of its employees, agents and contractors.
14.3 Assignability: Evolent has entered into this Agreement because of the expertise of ABCO, and ABCO understands that the obligations of ABCO are personal to ABCO and may not be assigned to any other company, partnership or individual without the express written consent of Evolent; provided, however, that no consent shall be required if an assignment is made in connection with a sale of all or substantially all of ABCO’s assets or stock, or in connection with a merger or Change of Control. Evolent may assign this Agreement (including the licenses granted pursuant to this Agreement) to any Affiliate of Evolent as part of an internal reorganization or in connection with a sale of substantially all of its assets or stock, or in connection with a merger or Change of Control.
14.4 Governing Law and Jurisdiction: This Agreement shall be governed by and construed and enforced in accordance with the Laws of the Commonwealth of Pennsylvania, without regard to that state or any other state’s conflicts of law rules. Each Party irrevocably consents to the personal jurisdiction of the state and federal courts located in Wilmington, Delaware for any suit or action arising from or related to this Agreement.
14.5 Force Majeure: Neither Party shall be deemed in default of this Agreement to the extent that performance of their obligations or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, act of government, or any other cause beyond the control of such Party, provided that such Party gives the other Party written notice thereof promptly and, in any event, within fifteen (15) days of discovery thereof, and uses its commercially reasonable efforts to cure any such breach.
14.6 Entire Agreement: This Agreement and its exhibits, schedules, and attachments constitute the entire understanding between the Parties with respect to the subject matter hereof and supersede all prior written or oral representations with respect to the subject matter hereof. This Agreement may not be modified, amended, or otherwise changed in any manner except by a written instrument executed by the Party against whom enforcement is sought.
14.7 Cumulative Remedies: Except as expressly provided in this Agreement, (a) remedies for breach are cumulative and may be exercised separately or concurrently, (b) the exercise of one remedy is not an election of that remedy to the exclusion of others, and (c) the provision for any remedy in this Agreement shall not affect remedies otherwise available at Law or in equity.
14.8 No Third Party Beneficiaries: The Parties do not intend that this Agreement creates any right or cause of action in or on behalf of any Person other than Evolent and ABCO.
14.9 Headings: Section headings have been included in this Agreement merely for convenience of reference. They are not to be considered part of, or to be used in interpreting this Agreement.
14.10 Binding Effect: The covenants and conditions contained herein will apply to and bind the successors, representatives, and permitted assigns of the Parties.
14.11 Expenses: Each Party shall be responsible for its own legal, accounting and other transaction costs relating to the transactions contemplated in this Agreement.
14.12 Notices: All notices required to be given hereunder shall be in writing and given hereunder, as elected by the Party giving notice, as follows: (a) by personal delivery, (b) sent by overnight courier with confirmation of receipt, or (c) dispatched by certified or registered mail, return receipt requested, postage prepaid, addressed to the Parties as follows.
If to Evolent: Evolent, Inc.
800 N. Glebe Road, Suite 500
Arlington, VA 22203
Attention: President
Morgan Lewis & Bockius, LLP
225 Franklin Street
Boston, MA 02110
Attention: Mark B. Stein, Esq.
Fax No.: (617) 341-7701
If to ABCO: The Advisory Board Company
2445 M St. NW
Washington, DC 20037
Attention: General Counsel
Notice shall be deemed given (a) on the date of receipt if delivered personally; (b) on the business day following delivery of such notice to the overnight courier; or (c) three (3) business days after deposit in the mail in accordance with the foregoing. Either Party may change the address to which to send notices by notifying the other Party of such change of address in writing in accordance with the foregoing.
14.13 Press Releases: No press releases or other public announcements concerning the transactions contemplated by this Agreement shall be made by ABCO or Evolent without the prior written consent of both Parties; provided, however, that nothing herein shall prevent a Party from supplying such information or making statements as required by governmental authority or in order for a Party to satisfy its legal obligations (prompt notice of which shall in any such case be given to the other Party).
14.14 Severability: Any terms or provisions of this Agreement that shall prove to be invalid, void or illegal shall in no way affect, impair, or invalidate any other term or provision herein and such remaining terms and provisions shall remain in full force and effect provided that its general purposes are still reasonably capable of being effected. All such terms or provisions which are determined by a court of competent jurisdiction or other dispute resolution proceeding to be invalid, void or illegal shall be construed and limited so as to allow the maximum effect permissible by Law.
14.15 Waiver: The waiver by either Party to this Agreement of any one or more defaults, if any, on the part of the other, shall not be construed to operate as a waiver of any other or future defaults under the same or different terms, conditions or covenants contained in this Agreement.
IN WITNESS WHEREOF, the Parties have executed this Agreement effective as of the date first written above.
THE ADVISORY BOARD COMPANY EVOLENT HEALTH, INC.
/s/ Evan Farber
By: Evan Farber By:
Its: General Counsel Its:
[Signature Page to Amended and Restated Services, Reseller and Non-Competition Agreement]
IN WITNESS WHEREOF, the Parties have executed this Agreement effective as of the date first written above.
THE ADVISORY BOARD COMPANY EVOLENT HEALTH, INC.
/s/ Frank Williams
By: By: Frank Williams
Its: Its: CEO
| Entailment |
622_nda-7 | 622_nda-7_0 | Q: Receiving Party may share some Confidential Information with some third-parties (including consultants, agents and professional advisors).
Text: Exhibit 10.16
AMENDED AND RESTATED
SERVICES, RESELLER AND NON-COMPETITION AGREEMENT
THIS AMENDED AND RESTATED SERVICES, RESELLER AND NON-COMPETITION AGREEMENT (this “Agreement”) is made and entered into effective as of June 27, 2013 (the “Effective Date”) by and between The Advisory Board Company, a Delaware corporation (“ABCO”), and Evolent Health, Inc. (f/k/a VPHealth, Inc.), a Delaware corporation (“Evolent”), (each, a “Party”, and collectively, the “Parties”).
RECITALS
WHEREAS, ABCO and Evolent entered into a Services, Reseller and Non-Competition Agreement (the “Original Agreement”), effective as of August 31, 2011 (the “Original Effective Date”);
WHEREAS, since entering into the Original Agreement, Evolent and ABCO have continued to explore ways to improve the efficiency and implementation of their relationship; and
WHEREAS, as a result of the foregoing efforts, the Parties have agreed to amend and restate the Original Agreement as set forth in this Agreement.
NOW, THEREFORE, in consideration of the above recitals, the terms and conditions hereinafter set forth, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto agree as follows:
1. DEFINITIONS. For purposes of this Agreement:
1.1 “ABCO Restricted Products and Services” means (a) care management services including, but not limited to, traditional disease management services, direct patient outreach and other service-based care management offerings (e.g., readmissions management teams, nurse call centers, on-site care management teams); (b) care management workflow software designed for and used by provider-owned payor organizations or other entities intending to conduct active care management campaigns targeted at managing population health/longitudinal outcomes (i.e, solutions that are the same as or substantially similar to (i.e. functionality that is redundant in substantial and material respects with) HealthPlaNet); (c) services primarily intended to support cost reduction and benefit changes for health system employees; (d) consulting services comparable and competitive with blueprint consulting services offered by Evolent as of the Effective Date (“Blueprint Services”), (e) Exclusive TPA Services or (f) Crimson Care Registry products. For the avoidance of doubt, Restricted Products and Services does not include behavioral health-related services or software (e.g., Askesis Development Group software), services similar to those offered by UPMC WorkPartners (e.g., “Take-a-Healthy-Step” or similar health and wellness programs, occupational medicine, on-site clinic implementation and administration, employee assistance services, absence management or workers’ compensation services), or software or solutions similar to those offered by EBenefits Solutions, LLC.
1.2 “Active Sales Process”, with respect to any Person as of any date on which Evolent proposes to add such Person to the list of Evolent Top Prospects, means such Person (a) is not an Evolent Client as of such date and (b) either (i) has purchased ABCO Restricted Products and Services from ABCO prior to such date or (b) was engaged in active discussions with ABCO about acquiring ABCO Restricted Products and Services (including, but not limited to, a review of the applicable offering of ABCO Restricted Products and Services) as of such date.
1.3 “Affiliate” means any Person which Controls, is Controlled by, or is in common Control with, another Person.
1.4 “Business Plan” has the meaning set forth in that certain Intellectual Property License and Data Access Agreement between the Parties.
1.5 “Change of Control” with respect to any entity means a transaction or series of related transactions in which a Person, or a group of related Persons, acquires from stockholders of the subject entity, the entity’s shares representing more than fifty percent (50%) of the outstanding voting power of such entity.
1.6 “Confidential Information” means any and all technical and non-technical information, whether conveyed verbally, in writing, electronically or by any other means, including, but not limited to, trade secrets, source code, technology, know-how and proprietary information, techniques, plans or any other information relating to any research project, analysis, work in process, future development, scientific, engineering, marketing or business plans or financial, contractual or personnel matters relating to either Party or its present or future products, services, sales, suppliers, identity of and information relating to customers and prospective customers, customer or prospect list, prospective employees, investors or affiliates or other proprietary information disclosed or otherwise supplied in confidence by either Party to the other, to the extent that such information is provided pursuant to this Agreement by one Party to the other Party and is marked “confidential” or “proprietary” or that should be reasonably understood by the Receiving Party (based on the nature of the information or the context in which the information is disclosed) should be considered confidential. Confidential Information will not include information to the extent that: (a) such information is or becomes publicly available other than through any act or omission of either Party in breach of this Agreement; (b) such information was received by the Receiving Party, other than under an obligation of confidentiality, from a third party who had no obligation of confidentiality to the other Party; (c) such information was in the possession of the Receiving Party at the time of the disclosure or was independently developed by the Receiving Party, as reflected by the Receiving Party’s internal, written and dated documentation; or (d) an applicable regulation, court order or other legal process requires the disclosure of such information, provided that prior to such disclosure the Disclosing Party will give notice to the other Party so that the other Party may take reasonable steps to oppose or limit such disclosure, so that the Disclosing Party does not disclose any more information than necessary to comply with such legal process. The burden of proof that Confidential Information falls into any one of the above exemptions will be borne by the Party claiming such exemption with documentation or other credible evidence.
1.7 “Control” as used with respect to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities, by agreement or otherwise.
1.8 “Evolent Clients” means entities under a current contract with Evolent for an implementation and/or long-term services contract. 1.9 “Evolent Top Prospects” means, as of any date, up to twenty (20) potential Evolent customers in the Evolent sales pipeline identified by Evolent that are not Evolent Clients as of such date, and (a) are engaged in active discussions with Evolent regarding purchasing Evolent products and services and/or (b) are under a current contract with Evolent for Blueprint Services or other services that do not constitute implementation or long-term services; provided, however, that (i) the list of such potential Evolent customers may be updated by Evolent on a quarterly basis, and ABCO shall have the opportunity upon receipt of each such quarterly update to notify Evolent if any of the Persons added to such list are in an Active Sales Process with ABCO and shall therefore be removed from such list, and (ii) no Person shall remain on the list of Evolent Top Prospects for more than (x) twelve (12) consecutive months, in the case of potential Evolent customers without a signed agreement with Evolent, or (y) twenty-four (24) consecutive months, in the case of potential Evolent Clients that signed an agreement for Blueprint Services with Evolent before or within twelve (12) months of being added to the list of Evolent Top Prospects.
1.10 “Exclusive TPA Services” means certain services as set forth on Schedule 1 of the UPMC Reseller Agreement (as in effect on the Effective Date), to the extent that UPMC Health Plan, Inc., a Pennsylvania nonprofit corporation (“UPMC”), has the exclusive right to provide such services to Evolent, for resale by Evolent to its customers.
1.11 “Disclosing Party” means a Party that provides Confidential Information to the other Party, or the other Party’s Affiliates.
1.12 “Governmental Authority” means any federal, state, municipal, local, territorial, or other governmental department, regulatory authority, judicial or administrative body, whether domestic, foreign or international.
1.13 “Law” means all international, federal, country, state, provincial, local and other laws, rules and regulations, declaration, decree, directive, legislative enactment, order, code, ordinance, regulation, rule or other binding restriction of or by any Governmental Authority, as the same are promulgated, supplemented or amended from time to time.
1.14 “Loss” individually, and collectively, “Losses” means all claims, liabilities, obligations, losses, costs, expenses (including, without limitation, legal, accounting and similar expenses), litigation, proceedings, fines, taxes, levies, imposts, duties, deficiencies, assessments, charges, penalties, allegations, demands, damages (including, but not limited to, actual, punitive or consequential, foreseen or unforeseen, known or unknown, fixed or contingent, and matured or unmatured), civil and criminal violations of Law, settlements and judgments of any kind or nature whatsoever.
1.15 “Person” means any individual, corporation, partnership, firm, joint venture, association, limited liability company, limited liability partnership, joint-stock company, trust, joint venture, unincorporated organization, governmental, judicial or regulatory body, business unit, division or any other business entity, organization or Governmental Authority.
1.16 “Receiving Party” means a Party that receives Confidential Information from the other Party or the other Party’s Affiliates.
1.17 “Statement of Work” or “SOW” means an agreement by and between ABCO and Evolent that contains the detailed description of services, scope, specifications, pricing, implementation plan, timetables, milestones, and other terms and conditions for each procurement of services, as applicable.
1.18 “UPMC Reseller Agreement” means that certain Second Amended and Restated Reseller, Services and Non-Competition Agreement between UPMC and Evolent dated as of [the Effective Date].
2. SERVICES TO BE PROVIDED BY ABCO.
2.1 General Services:
2.1.1 Minimum Purchase. The Parties hereby acknowledge and agree that Evolent has purchased from ABCO a minimum of Two Hundred Thousand Dollars ($200,000) of services (as described in Section 2.2.1) (the “Original Minimum Purchase”) for delivery between the Original Effective Date and the first anniversary thereof.
2.1.2 Statements of Work. The specific description, price, service levels (if applicable) and other project, service, and/or customer-specific terms for a particular service that may be provided by ABCO to Evolent (each, a “Service”, and collectively, the “Services”) shall be set forth in a Statement of Work that will be created on a project by project basis.
2.2 Right of First Offer and Process for Invoking:
2.2.1 Applicable Services. Throughout the Term, ABCO shall have the right of first offer to provide the following services to Evolent and Evolent’s customers:
(a) Physician practice management consulting and other physician practice management services;
(b) Physician incentive design services;
(c) Medical home development consulting services; and
(d) Performance analytics shared with physicians with the intent to improve outcomes.
2.2.2 Process for Exercising Right of First Offer. Evolent shall notify ABCO in writing in the event Evolent desires to receive any of the above services (“First Offer Services”). ABCO shall have a period of thirty (30) days (“First Offer Services Evaluation Period”) within which to conduct its evaluation and diligence with respect to providing such First Offer Services. Evolent shall cooperate with ABCO and provide reasonable assistance and information to ABCO to enable ABCO to conduct its evaluation. Within five (5) business days after the expiration of such First Offer Services Evaluation Period, ABCO shall notify Evolent in writing whether or not it wishes to provide such services to Evolent. If ABCO elects to provide such First Offer Services, Evolent agrees to engage in good faith negotiations with ABCO, on an exclusive basis for a period of sixty (60) days, regarding the specific terms covering such First Offer Services.
2.3 Failure to Execute a Service Agreement for the VBC Innovation Center: The Parties acknowledge and agree that it was their intent as of the Original Effective Date to enter into a service agreement under which Evolent would engage ABCO to provide certain consulting, development and support services in connection with the creation, launch, implementation and ongoing support of a Value-Based Care Innovation Center (the “VBC Innovation Center”), in consideration for which Evolent would pay ABCO a fixed fee of Eight Hundred Thousand Dollars ($800,000) per year (“Fixed Fee”) for each of the first two (2) years of the term of such VBC Innovation Center service agreement. The Parties acknowledge and agree that, notwithstanding the fact that they negotiated with diligence and in good faith the specific terms and conditions of such service agreement, the Parties were unable to reach an agreement with respect to the VBC Innovation Center. Accordingly, the Original Minimum Purchase is increased to One Million Two Hundred Thousand Dollars ($1,200,000) (the “Minimum Purchase”) as follows: (a) between the Original Effective Date and the second anniversary thereof, Evolent shall have purchased from ABCO a minimum of Seven Hundred Thousand Dollars ($700,000) of services for delivery on or prior to such second anniversary of the Original Effective Date), and (b) inclusive of the purchases described in clause (a), between the Original Effective Date and the third anniversary thereof, Evolent shall have purchased from ABCO a minimum of One Million Two Hundred Thousand Dollars ($1,200,000) of services for delivery on or prior to such third anniversary of the Original Effective Date); provided that, for purposes of this sentence, “services” shall include consulting, software, professional or analytic services provided from time to time by ABCO to Evolent (other than services in connection with the provision of any office space by or on behalf of ABCO to Evolent) or, pursuant to a joint written proposal by ABCO and Evolent, to any Evolent Client.
2.4 Reservation of Rights: For the avoidance of doubt, Evolent is not precluded from offering and providing services directly to its customers, subject (a) to (i.e., after ABCO has had the full opportunity to exercise) ABCO’s right of first offer to provide any First Offer Services in accordance with Section 2.2) and (b) to Evolent’s compliance with its non-competition obligations as set forth in Section 6.2.
2.5 Designation of Relationship Managers: In order to support the launch and ongoing success of the exclusive reseller relationship between ABCO and Evolent, each Party agrees to designate a senior level individual who will serve as the primary liaison and “go to” contact and relationship manager for such Party (each, a “Relationship Manager”). Each Party’s Relationship Manager’s role and responsibilities would include: (a) facilitating day-to-day communications between the Parties regarding customer-facing activities, such as marketing, promotional and sales activities and preparing and submitting bids, proposals, responses to requests for proposals, fee estimates, Statements of Work and project plans; (b) receiving and submitting requests between the Parties for information and/or assistance; (c) overseeing the efficient knowledge transfer and flow of information between the Parties; (d) facilitating communications between the appropriate individuals within Evolent and ABCO, with respect to product and service offering development; and (e) providing the first level of performance review or escalation in the event of a Dispute as provided in Section 13. The Relationship Managers will meet regularly, but no less frequently than monthly, as reasonably necessary, to maintain a good working relationship between the Parties. Each Party may change its Relationship Manager by giving the other Party reasonable notice as long as the change is implemented in a manner that does not cause any significant disruption to each Party’s business operations and business relationship.
3. FEES; PAYMENT TERMS; SHORTFALL.
3.1 Fees; Timing of Payments: Evolent shall pay ABCO the applicable fees for the Services performed by ABCO pursuant to a Statement of Work, as follows: (a) unless the Parties otherwise agree in writing, a deposit of 50% of the total fees for the particular project shall be paid upon signing of the Statement of Work; (b) ABCO will submit an invoice to Evolent for the balance upon completion of the work; and (c) Evolent shall pay ABCO for such invoiced amount within thirty (30) days after receipt of such invoice.
3.2 Minimum Purchase and Shortfall: Evolent agrees to pay ABCO the Minimum Purchase. If the aggregate amount of Services actually procured by Evolent from ABCO is not equal to or greater than (a) Seven Hundred Thousand Dollars ($700,000) of services for delivery on or prior to the second anniversary of the Original Effective Date or (b) inclusive of the purchase described in clause (a), the Minimum Purchase of services for delivery on or prior to the third anniversary of the Original Effective Date, Evolent shall pay ABCO the amount of the shortfall (i.e., the difference between Seven Hundred Thousand Dollars ($700,000) or the Minimum Purchase amount, as applicable, less the sum of: (a) the aggregate fees for the actual amount of Services procured; and (b) any Credits (as provided in the next sentence) (the “Shortfall”), if any, on or before August 31, 2013 or August 31, 2014, as applicable. In the event that ABCO refuses or fails, without reasonable cause, to provide any of the Services requested by Evolent (provided the scope of the Services requested is within the scope customarily provided by ABCO), the fees that would otherwise have been applicable had ABCO agreed to provide such Services would count as a “Credit”. As of the date hereof, no such Credits have accrued.
4. TERM AND RENEWAL. The initial term of this Agreement shall commence on the Effective Date and unless sooner terminated in accordance with the terms hereof, shall continue until August 31, 2016 (“Initial Term”). Thereafter, this Agreement shall automatically be renewed for another five-year term (“Renewal Term”) unless either Party elects to terminate this Agreement by providing the other Party with written notice of termination one hundred eighty (180) days prior to the expiration of the current term. (“Initial Term” and “Renewal Term” collectively, the “Term”).
5. REFERRAL FEES, SOLICITATION AND COMPETITION AND POST-CLOSING SERVICES.
5.1 Referral Fees:
5.1.1 During the Term, ABCO will pay Evolent a sales referral fee for any sale made by ABCO that resulted from a “net” new sale from a new customer that was not already in ABCO’s sales pipeline (i.e., a “warm lead”) or a then-current customer of ABCO generated directly by Evolent’s efforts and without any assistance from any ABCO employee or representative (including any Evolent employee that serves on the Board of Directors of ABCO), equal to 5% of the total ABCO revenue from the new customer during the initial twelve (12) months of services under the services agreement with such new customer.
5.1.2 During the Term, Evolent will pay ABCO a sales referral fee for any sale made by Evolent that resulted from a “net” new sale from a new customer that was not already in Evolent’s sales pipeline (i.e., a “warm lead”) or a then-current customer of Evolent generated directly by ABCO’s efforts and without any assistance from any Evolent employee or representative (including any ABCO employee that serves on the Board of Directors of Evolent), in accordance with the following terms:
(a) ABCO will receive a one-time referral fee for any “employee health” diagnostic, consulting or broker services provided by Evolent to a Covered Health System, equal to the lesser of $20,000 or 5% of the total Evolent revenue from the Covered Health System during the initial twelve (12) months of services under the service agreement with such Covered Health System.
(b) ABCO will receive $50,000 per year for three (3) years for each health system joining Evolent as an Employee Health Platform Customer. An “Employee Health Platform Customer” is defined as a health system purchasing diagnostic/consulting services and ongoing medical management/health plan services (i.e., care management, HealthPlaNet care management application, and the TPA platform, etc.).
(c) ABCO will receive $100,000 per year for three (3) years for a health system joining Evolent as a Platform Health Plan Customer. A “Platform Health Plan Customer” is defined as a health system purchasing ongoing medical management services, ongoing health plan outsourcing services (i.e., TPA) and health plan management services for purposes of a licensed insurance entity with at least fifty thousand (50,000) lives (beyond the employee population).
(d) With the exception of making the introduction (either through an email or an in-person meeting) (to generate the “warm lead”), ABCO would not be expected to perform any actual duties or incur actual cost to receive a referral fee.
(e) The annual referral fees for each referral would be capped at the lesser of (x) 5% of annual revenue generated by Evolent for the respective customer and (y) the $50,000 or $100,000 figures described above, as applicable.
6. SOLICITATION AND COMPETITION.
6.1 Scope:
6.1.1 Throughout the Term, ABCO agrees not to offer any ABCO Restricted Products and Services to (a) any Evolent Clients or (b) any Evolent Top Prospects; provided, however, that ABCO shall not be restricted from making any such offer to any Evolent Top Prospect or Evolent Client with whom ABCO was, at the time such Person was identified as an Evolent Top Prospect or became an Evolent Client, engaged in an Active Sales Process. The foregoing restrictions shall not apply in the event of a Change of Control of Evolent or in the event that ABCO ceases to be a shareholder of Evolent.
6.1.2 None of the foregoing would prohibit ABCO from:
(a) Marketing, offering, licensing or selling versions of any of its Crimson Population Risk Management products, or the successors to any such products, provided that such products, or the successors to any such products, are not the same as or substantially similar to (i.e., includes functionality that is redundant in substantial and material respects with) HealthPlaNet as it exists as of the Effective Date.
(b) Supporting employers with care management related best practices and research.
(c) Offering traditional “dedicated advisor” support in conjunction with ABCO’s traditional business intelligence offerings.
(d) Marketing, offering, licensing or selling its employer health product.
(e) Providing physician management consulting and other physician management services.
6.2 Restrictions Relating to Certain ABCO Products and Services: Evolent shall not, until the earlier of (x) ABCO’s ceasing to be a shareholder of Evolent or (y) the seventh (7 ) anniversary of the date of this Agreement, promote, market, provide, offer or sellth (a) unbundled software applications, software tools or other similar technologies (including, without limitation, software as a service, analytics technology or data services) (each, a “Technology Solution”), (b) consulting services that are not intended to lead to or be a part of a Blueprint Services engagement, implementation contract and/or long-term services contract, or (c) any best practices membership programs or unbundled or bundled physician practice management and other physician practice management consulting services, in each case referred to in this clause (c) that are substantially similar to, or that are competitive with, ABCO’s best practices membership programs or physician practice management or other physician practice management consulting services that are offered by ABCO as of the date first written above. For the avoidance of doubt, “unbundled” means on a stand-alone basis, instead of “bundled”, which contemplates that the Technology Solution is both (i) offered as part of a “packaged”, integrated offering, in conjunction with other Evolent products or services that are not Technology Solutions (and not only services that constitute customary software, data and end user support-related services), such as the Exclusive TPA Services, and (ii) incidental to the provision of such other Evolent products or services. Notwithstanding any other provision hereof, the foregoing restrictions in this Section 6.2 shall survive a Change of Control of Evolent for seven (7) years from the date of this Agreement; provided, however, that prior to the seventh (7 ) anniversary of the date of thisth Agreement, the acquiring party in a Change of Control of Evolent shall be not be subject to the foregoing restrictions with respect to any Technology Solutions or consulting services, in each case, that are unrelated to the Evolent assets acquired.
6.3 Non-Solicitation or Hiring: During the Term and for a period of eighteen (18) months thereafter, Evolent shall not solicit or hire any of ABCO’s employees without ABCO’s prior written consent.
7. EXCLUSIVE RESELLER RIGHTS FOR FUTURE PRODUCTS.
In the event that Evolent creates a discrete or segregable product or service that can be sold to healthcare providers, Evolent shall notify ABCO in writing of such new offerings (“New Products”). ABCO shall have a period of ninety (90) days (“New Products Evaluation Period”) within which to conduct its evaluation and diligence with respect to providing such New Products. Evolent shall cooperate with ABCO and provide reasonable assistance and information to ABCO to enable ABCO to conduct its evaluation. Within five (5) business days after the expiration of such New Products Evaluation Period, ABCO shall notify Evolent in writing whether or not it wishes to have the right to resell such New Products. If ABCO elects to resell such New Products, Evolent and ABCO agree to negotiate in good faith on an exclusive basis for one hundred twenty (120) days the terms of a reseller agreement, under which ABCO would be the exclusive distributor (in addition to Evolent) of such New Products.
8. CONFIDENTIALITY.
8.1 Confidential Information: ABCO acknowledges that in connection with its rights and obligations under this Agreement it may gain access to the Confidential Information of Evolent and its customers and Affiliates. Evolent acknowledges that in connection with its rights and obligations under this Agreement, it may gain access to the Confidential Information of ABCO and its customers and Affiliates.
8.2 Non-Disclosure: The Receiving Party may disclose the Disclosing Party’s Confidential Information strictly on a need-to-know basis to only those personnel, including employees of the Receiving Party’s contractors, who require access to the Disclosing Party’s Confidential Information in order to perform or derive benefit from the Services or otherwise meet its obligations under this Agreement. The Receiving Party agrees: (a) to hold the Disclosing Party’s Confidential Information in strict confidence, using the same degree (but no less than a reasonable degree) of care and protection that it exercises with its own Confidential Information of a similar nature; (b) not to directly or indirectly disclose or otherwise make available any Confidential Information of the Disclosing Party to a third party; and (c) not to copy or use the Disclosing Party’s Confidential Information for any purpose other than as necessary to fulfill the Receiving Party’s obligations or exercise its rights under this Agreement. Each Receiving Party is responsible for ensuring that its employees, agents and contractors strictly abide by the requirements of confidentiality and restrictions on use as provided in this Section 8.2 and shall be liable to the Disclosing Party for any acts or omissions of its employees, agents and independent contractors relating to the Disclosing Party’s Confidential Information. The Receiving Party is allowed to disclose Confidential Information of the Disclosing Party to the extent required by Law or by the order or a court of similar judicial or administrative body with jurisdiction, provided that the Receiving Party notifies the Disclosing Party of such required disclosure promptly and in writing and cooperates with the Disclosing Party, at the Disclosing Party’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure. The provisions of this Section 8 shall survive beyond the expiration or termination of this Agreement.
8.3 Injunctive Relief: The Parties acknowledge and agree that monetary damages may be inadequate to compensate for a breach of the provisions contained in this Section 8 or other confidentiality provisions of this Agreement. In the event of such breach, the injured Party shall be entitled to seek injunctive relief (without the need to post bond) and any and all other remedies available at Law or in equity. This Section 8.3 in no way limits the liability or damages that may be assessed against a Party in the event of a breach by the other Party of any of the provisions of this Section 8.
8.4 Residuals: Notwithstanding anything in this Section 8 to the contrary, subject to any applicable statutory intellectual property rights applicable to patents, trademarks or copyrights, either Party may use “Residuals” for any purpose, including without limitation, for use in development, manufacture, promotion, sale and maintenance of its products and services; provided, however, that this right to Residuals does not represent a license under any patents, copyrights or trademarks of the Disclosing Party. The term “Residuals” means any information that is retained in the unaided memories of the Receiving Party’s employees who have had access to the Disclosing Party’s Confidential Information pursuant to the terms of this Agreement.
9. WARRANTIES.
9.1 Authority/No Conflict: ABCO represents and warrants that (a) it has the power and authority to enter into and perform its obligations under this Agreement without conflict with, default under, or violation of any Law, regulation, or agreement binding upon it, and (b) this Agreement has been duly authorized by all necessary organizational action, and duly and validly executed and delivered by it, and constitutes its legally valid and binding obligation, enforceable in accordance with its terms.
9.2 Services: ABCO represents, warrants and covenants that the Services provided under this Agreement will be performed in a professional and workmanlike manner.
9.3 Compliance with Laws/Approvals: Each of ABCO and Evolent shall comply in all material respects with all Laws and regulations applicable to ABCO or Evolent, as applicable, in performing its obligations under this Agreement. To the extent applicable, ABCO shall be responsible for obtaining all necessary permits, licenses, and consents, including governmental approvals, required of ABCO and its contractors in connection with the performance of its obligations under this Agreement, and Evolent shall be responsible for obtaining all necessary permits, licenses, and consents, including governmental approvals, required of Evolent and its contractors in connection with the performance of its obligations under this Agreement.
9.4 Limitations of Warranty: EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, ABCO MAKES NO OTHER WARRANTY OR REPRESENTATION, ORAL, WRITTEN, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE SERVICES, INCLUDING WITHOUT LIMITATION, THEIR QUALITY, PERFORMANCE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, UNINTERRUPTED OR ERROR-FREE OPERATION OR OTHERWISE HEREUNDER. The disclaimer of warranties and limitations set forth in this Agreement constitute an essential part of this Agreement.
10. INDEMNIFICATION.
10.1 IP Indemnification: ABCO shall defend, indemnify and hold harmless Evolent and its Affiliates (other than ABCO), customers, and their respective officers, directors and employees from and against any Losses resulting from a claim that the Services provided by ABCO under this Agreement infringes or misappropriates a third party’s intellectual property rights. ABCO shall also use commercially reasonable efforts to modify the allegedly infringing Services to make it non-infringing, procure a license from the third party claiming infringement to permit Evolent to continue to use the Services, or provide Evolent with functionally equivalent and non-infringing Services. THIS SECTION 10.1 SETS FORTH ABCO’S SOLE AND EXCLUSIVE LIABILITY, AND EVOLENT’S SOLE AND EXCLUSIVE REMEDY, FOR ALLEGATIONS OR CLAIMS OF INFRINGEMENT OF THIRD PARTY RIGHTS OF ANY KIND ASSERTED AGAINST EVOLENT, ITS AFFILIATES (OTHER THAN ABCO), CUSTOMERS AND THEIR RESPECTIVE OFFICERS, DIRECTORS AND EMPLOYEES. ABCO shall not be obligated to indemnify Evolent, its Affiliates, customers, and their respective officers, directors and employees for infringement or misappropriation claims to the extent such claims arise out of use by Evolent or its customers of any of the Services in a manner other than as contemplated by the Parties under this Agreement.
10.2 ABCO’s Indemnification: ABCO hereby agrees to indemnify, defend, and hold Evolent and its Affiliates (other than ABCO), and all of their respective directors, officers, members, managers, partners, employees, agents, successors and assigns, harmless from and against any Losses arising from or related to: (a) the material breach of this Agreement, including any or all SOWs, by ABCO or its personnel (including contractors); (b) breach of any of ABCO’s representations, warranties, and covenants in this Agreement; or (c) negligence or willful misconduct by ABCO or its personnel (including contractors).
10.3 Evolent’s Indemnification: Evolent hereby agrees to indemnify, defend, and hold ABCO and its Affiliates (other than Evolent), and all of their respective directors, officers, members, managers, partners, employees, agents, successors and assigns, harmless from and against any Losses arising from or related to: (a) the material breach of this Agreement, including any or all SOWS, by Evolent or its personnel (including contractors); (b) breach of any of Evolent’s representations, warranties and covenants in this Agreement; or (c) negligence or willful misconduct by Evolent or its personnel (including contractors).
10.4 Indemnification Procedure:
10.4.1 Notice of Claim. Any Party seeking indemnification hereunder (the “Indemnitee”) shall notify the Party liable for such indemnification (the “Indemnitor”) in writing of any event, omission or occurrence that the Indemnitee has determined has given or could give rise to Losses that are indemnifiable hereunder (such written notice being hereinafter referred to as a “Notice of Claims”). Such Notice of Claims shall be given promptly after the Indemnitee becomes aware of its own claim or that of a third party; provided that the failure of any Indemnitee to give notice as provided in this Section 10.4.1 shall not relieve the Indemnitor of its obligations under this Section 10. A Notice of Claims shall specify in reasonable detail the nature and any particulars of the event, omission, or occurrence giving rise to a right of indemnification. The Indemnitor shall satisfy its obligations hereunder, as the case may be, within thirty (30) days of its receipt of a Notice of Claims.
10.4.2 Process. With respect to any third party claim, demand, suit, action, or proceeding that is the subject of a Notice of Claim, the Indemnitor shall, in good faith and at its own expense, defend, contest, or otherwise protect against any such claim, demand, suit, action, or proceeding with legal counsel of its own selection (and reasonably acceptable to the Indemnitee). The Indemnitee shall have the right, but not the obligation, to participate, at its own expense, in the defense thereof through counsel of its own choice and shall have the right, but not the obligation, to assert any and all cross claims or counterclaims it may have. So long as the Indemnitor is defending in good faith any such third party claim, demand, suit, action or proceeding, the Indemnitee shall at all times cooperate, at its own expense, in all reasonable ways with, make its relevant files and records available for inspection and copying by, and make its employees available or otherwise render reasonable assistance to, the Indemnitor. In the event that the Indemnitor fails to timely defend, contest or otherwise protect against any such third party claim, demand, suit, action, or proceeding, the Indemnitee shall have the right, but not the obligation, to defend, contest, assert cross claims or counterclaims, or otherwise protect against, the same and may make any compromise or settlement thereof and be entitled to all amounts paid as a result of such third party claim, demand, suit, or action or any compromise or settlement thereof. The Indemnitor will not consent to the entry of any judgment or enter into any settlement with respect to any such third party claim, demand, suit, action or proceeding without the prior written consent of the Indemnitee, which will not be unreasonably withheld, and provided that no settlement shall require the Indemnitee to admit liability, or perform or become subject to additional obligations thereunder.
11. LIMITS OF LIABILITY. EXCEPT WITH RESPECT TO OR BREACH BY EITHER PARTY OF THE OTHER PARTY’S CONFIDENTIAL INFORMATION UNDER SECTION 8,
NEITHER EVOLENT NOR ABCO SHALL BE LIABLE FOR, NOR WILL THE MEASURE OF DAMAGES INCLUDE, ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OR AMOUNTS INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF INCOME, PROFITS, OR SAVINGS, LOSS OF DATA, OR COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES, ARISING OUT OF OR RELATING TO ITS PERFORMANCE UNDER THIS AGREEMENT UNDER ANY CAUSE OF ACTION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL EITHER PARTY’S LIABILITY EXCEED THE AMOUNT OF REVENUE ACTUALLY RECEIVED BY ABCO IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO THE CLAIM.
12. TERMINATION.
12.1 Termination for Cause: Either Party shall have the right to terminate this Agreement in the event the other Party materially violates a material provision of this Agreement and such violation is not cured or cannot be cured within thirty (30) days after written notice of such material violation.
12.2 Survival: The rights and obligations contained in Sections 1, 5 (with respect to Evolent’s payment obligations that may extend beyond the Term), 6.2, 6.3, 8, 9.4, 10, 11, 12.2, 13 and 14 shall survive any termination or expiration of this Agreement.
13. ESCALATION; DISPUTE RESOLUTION. Subject to the terms of Section 13.5, the procedures of this Section 13 will control the resolution of any and all disputes between the Parties including, without limitation, any dispute relating to disputed monies owing or breach of warranty (each, a “Dispute”). The Parties will seek to resolve each Dispute as follows:
13.1 First Level Performance Review: Each Party’s Relationship Manager will meet as often as will reasonably be required by either Party to review the performance of either Party under this Agreement and to resolve the Dispute. If these representatives are unable to resolve the Dispute within ten (10) business days after the initial request for a meeting, then the Parties will submit the Dispute to an executive level performance review as provided in Section 13.2 below.
13.2 Executive Level Performance Review: Face-to-face negotiations will be conducted by a senior executive officer of each Party (or such other executive as a Party may designate). If these representatives are unable to resolve the Dispute within five (5) business days after the Parties have commenced negotiations or ten (10) business days have passed since the initial request for a meeting at this level, then the Parties may jointly engage the services of a third-party mediator.
13.3 Arbitration: If the Parties are unable to resolve the Dispute through the alternative mechanisms described above, the Parties shall submit the Dispute for resolution through binding arbitration, except as otherwise provided in Section 13.5. The Parties agree and consent to such arbitration proceeding taking place in Wilmington, Delaware, and in accordance with the Commercial Arbitration Rules of the American Arbitration Association, except that discovery may be had in accordance with the Federal Rules of Civil Procedure. The Parties shall be permitted at least six (6) months from the date of the filing of the Arbitration Demand to conduct discovery. The arbitration proceedings shall be conducted by a panel of three (3) impartial arbitrators, with each Party selecting one (1) of the impartial arbitrators and those two (2) arbitrators then selecting the third impartial arbitrator, all such selections to be made through the procedures of the American Arbitration Association. At least one (1) arbitrator must be an attorney licensed under the Laws of Pennsylvania and at least one (1) arbitrator (may be the same Person as the Pennsylvania attorney) must have direct and substantial experience in the industry pertinent to the subject matter of the Dispute. Judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof; provided, however, in rendering its decision, the arbitrators shall be bound by the Laws of the Commonwealth of Pennsylvania (without regard to its conflicts of laws provisions) and by the terms and conditions of this Agreement setting forth the rights and responsibilities of the Parties. The decision of the arbitration panel shall be accompanied by a written opinion setting forth the factual and legal bases for the award. The arbitrators shall issue such written decision within thirty (30) days of the conclusion of the arbitration hearing. The arbitrators appointed hereunder shall not have the power to award punitive damages. Service of a petition to confirm the arbitration award may be made by United States mail, postage prepaid, or by any regularly conducted commercial express mail service, to the attorney for the Party or, if not so represented, to the Party at the address set forth herein, or to the Party’s last known business address. The prevailing Party in any action related to or arising under this Agreement shall be entitled to reasonable attorneys’ fees and costs.
13.3.1 For any Dispute in which the amount in controversy is at least One Million Dollars ($1,000,000), the following additional procedures apply:
(a) a certified court reporter shall transcribe the arbitration hearings; The Parties initially split the cost of the reporter, but such costs shall ultimately be awarded to the Party prevailing in the arbitration proceeding; and
(b) either Party may take an appeal from the final decision by making a written demand within twenty (20) days of the award.
13.3.2 Any such appeal shall be conducted as follows:
(a) such appeals are limited to issues of Law (i.e., the original award (1) contains material errors of Law such that the original award is not founded on any appropriate legal basis; (2) is based on factual findings clearly unsupported by the record; or (3) is subject to one or more grounds set forth in Section 10 of the Federal Arbitration Act or 42 Pa. C.S.A. §7341 for vacating an award);
(b) the Person hearing the appeal shall be a former federal judge mutually agreed to by the Parties or selected through the procedures of the American Arbitration Association. The former judge shall act as the appellate arbitrator;
(c) the submissions on appeal are limited to (1) the record of the arbitration, (2) a 30-page brief by the appellant, (3) a 30-page brief by the appellee and (4) a 10-page response by the appellant. The appellate arbitrator will set the dates for submission of the briefs. Oral argument may be heard at the discretion of the appellate arbitrator;
(d) the appellate arbitrator shall render a written decision within sixty (60) days of the final submission;
(e) during the pendency of the arbitration appeal, the Parties agree to suspend any running of the time to seek enforcement of the original award. The Parties also agree to waive any appeal to state or federal courts based on the grounds set forth in Section 10 of the Federal Arbitration Act for vacating an award and 42 Pa. C.S.A. § 7341;
(f) the appellate arbitrator must award costs and attorneys’ fees to the prevailing Party; and
(g) the decision of the appellate arbitrator shall be final.
13.4 Continued Performance: Each Party acknowledges that the timely and complete performance of its obligations pursuant to this Agreement is critical to the business and operations of the other Party. Accordingly, in the event of a Dispute, each Party shall continue to so perform all of its obligations under this Agreement, in good faith during the resolution of such Dispute unless and until (a) authority to stop doing so is granted or conferred by a court of competent jurisdiction or (b) this Agreement is terminated in accordance with the provisions hereof.
13.5 Equitable Relief: Notwithstanding anything contained in this Agreement to the contrary, the Parties will be entitled to seek injunctive relief, specific performance or other equitable relief whenever the facts or circumstances would permit a Party to seek equitable relief in a court of competent jurisdiction. Without limiting the generality of the foregoing, (a) Evolent agrees that there would be irreparable harm to ABCO in the event of any such breach by Evolent of Section 6.2 and ABCO shall be entitled to (i) injunctive relief to prevent breaches of Section 6.2, (ii) specific performance of this Agreement, and (iii) any other remedies provided by Law or equity, including without limitation an award for damages, and (b) ABCO agrees that there would be irreparable harm to Evolent in the event of any such breach by ABCO of Section 6.1.1, and Evolent shall be entitled to (i) injunctive relief to prevent breaches of Section 6.1.1, (ii) specific performance of this Agreement, and (iii) any other remedies provided by Law or equity, including without limitation an award for damages.
14. MISCELLANEOUS PROVISIONS.
14.1 Good Faith and Mutual Agreement: Unless otherwise expressly stated in such provision, if a provision in this Agreement calls for the consent of a Party or the mutual agreement of the Parties, the Parties agree that each will act in good faith, will not unreasonably withhold their consent and that deference shall be given to the other Party’s reasonable business requirements, and the requirements of the Parties’ respective regulators and internal controls procedures.
14.2 Independent Contractor: The relationship of ABCO to Evolent shall at all times be that of an independent contractor. Nothing in this Agreement shall be construed to create any partnership, association, joint venture, or employment between the Parties. Each Party shall have the sole and exclusive control over the labor and employee relations policies and policies relating to wages, hours, working conditions, benefits, or other conditions of its personnel and shall be responsible and liable for the acts and omissions of its employees, agents and contractors.
14.3 Assignability: Evolent has entered into this Agreement because of the expertise of ABCO, and ABCO understands that the obligations of ABCO are personal to ABCO and may not be assigned to any other company, partnership or individual without the express written consent of Evolent; provided, however, that no consent shall be required if an assignment is made in connection with a sale of all or substantially all of ABCO’s assets or stock, or in connection with a merger or Change of Control. Evolent may assign this Agreement (including the licenses granted pursuant to this Agreement) to any Affiliate of Evolent as part of an internal reorganization or in connection with a sale of substantially all of its assets or stock, or in connection with a merger or Change of Control.
14.4 Governing Law and Jurisdiction: This Agreement shall be governed by and construed and enforced in accordance with the Laws of the Commonwealth of Pennsylvania, without regard to that state or any other state’s conflicts of law rules. Each Party irrevocably consents to the personal jurisdiction of the state and federal courts located in Wilmington, Delaware for any suit or action arising from or related to this Agreement.
14.5 Force Majeure: Neither Party shall be deemed in default of this Agreement to the extent that performance of their obligations or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, act of government, or any other cause beyond the control of such Party, provided that such Party gives the other Party written notice thereof promptly and, in any event, within fifteen (15) days of discovery thereof, and uses its commercially reasonable efforts to cure any such breach.
14.6 Entire Agreement: This Agreement and its exhibits, schedules, and attachments constitute the entire understanding between the Parties with respect to the subject matter hereof and supersede all prior written or oral representations with respect to the subject matter hereof. This Agreement may not be modified, amended, or otherwise changed in any manner except by a written instrument executed by the Party against whom enforcement is sought.
14.7 Cumulative Remedies: Except as expressly provided in this Agreement, (a) remedies for breach are cumulative and may be exercised separately or concurrently, (b) the exercise of one remedy is not an election of that remedy to the exclusion of others, and (c) the provision for any remedy in this Agreement shall not affect remedies otherwise available at Law or in equity.
14.8 No Third Party Beneficiaries: The Parties do not intend that this Agreement creates any right or cause of action in or on behalf of any Person other than Evolent and ABCO.
14.9 Headings: Section headings have been included in this Agreement merely for convenience of reference. They are not to be considered part of, or to be used in interpreting this Agreement.
14.10 Binding Effect: The covenants and conditions contained herein will apply to and bind the successors, representatives, and permitted assigns of the Parties.
14.11 Expenses: Each Party shall be responsible for its own legal, accounting and other transaction costs relating to the transactions contemplated in this Agreement.
14.12 Notices: All notices required to be given hereunder shall be in writing and given hereunder, as elected by the Party giving notice, as follows: (a) by personal delivery, (b) sent by overnight courier with confirmation of receipt, or (c) dispatched by certified or registered mail, return receipt requested, postage prepaid, addressed to the Parties as follows.
If to Evolent: Evolent, Inc.
800 N. Glebe Road, Suite 500
Arlington, VA 22203
Attention: President
Morgan Lewis & Bockius, LLP
225 Franklin Street
Boston, MA 02110
Attention: Mark B. Stein, Esq.
Fax No.: (617) 341-7701
If to ABCO: The Advisory Board Company
2445 M St. NW
Washington, DC 20037
Attention: General Counsel
Notice shall be deemed given (a) on the date of receipt if delivered personally; (b) on the business day following delivery of such notice to the overnight courier; or (c) three (3) business days after deposit in the mail in accordance with the foregoing. Either Party may change the address to which to send notices by notifying the other Party of such change of address in writing in accordance with the foregoing.
14.13 Press Releases: No press releases or other public announcements concerning the transactions contemplated by this Agreement shall be made by ABCO or Evolent without the prior written consent of both Parties; provided, however, that nothing herein shall prevent a Party from supplying such information or making statements as required by governmental authority or in order for a Party to satisfy its legal obligations (prompt notice of which shall in any such case be given to the other Party).
14.14 Severability: Any terms or provisions of this Agreement that shall prove to be invalid, void or illegal shall in no way affect, impair, or invalidate any other term or provision herein and such remaining terms and provisions shall remain in full force and effect provided that its general purposes are still reasonably capable of being effected. All such terms or provisions which are determined by a court of competent jurisdiction or other dispute resolution proceeding to be invalid, void or illegal shall be construed and limited so as to allow the maximum effect permissible by Law.
14.15 Waiver: The waiver by either Party to this Agreement of any one or more defaults, if any, on the part of the other, shall not be construed to operate as a waiver of any other or future defaults under the same or different terms, conditions or covenants contained in this Agreement.
IN WITNESS WHEREOF, the Parties have executed this Agreement effective as of the date first written above.
THE ADVISORY BOARD COMPANY EVOLENT HEALTH, INC.
/s/ Evan Farber
By: Evan Farber By:
Its: General Counsel Its:
[Signature Page to Amended and Restated Services, Reseller and Non-Competition Agreement]
IN WITNESS WHEREOF, the Parties have executed this Agreement effective as of the date first written above.
THE ADVISORY BOARD COMPANY EVOLENT HEALTH, INC.
/s/ Frank Williams
By: By: Frank Williams
Its: Its: CEO
| Entailment |
622_nda-17 | 622_nda-17_0 | Q: Receiving Party may create a copy of some Confidential Information in some circumstances.
Text: Exhibit 10.16
AMENDED AND RESTATED
SERVICES, RESELLER AND NON-COMPETITION AGREEMENT
THIS AMENDED AND RESTATED SERVICES, RESELLER AND NON-COMPETITION AGREEMENT (this “Agreement”) is made and entered into effective as of June 27, 2013 (the “Effective Date”) by and between The Advisory Board Company, a Delaware corporation (“ABCO”), and Evolent Health, Inc. (f/k/a VPHealth, Inc.), a Delaware corporation (“Evolent”), (each, a “Party”, and collectively, the “Parties”).
RECITALS
WHEREAS, ABCO and Evolent entered into a Services, Reseller and Non-Competition Agreement (the “Original Agreement”), effective as of August 31, 2011 (the “Original Effective Date”);
WHEREAS, since entering into the Original Agreement, Evolent and ABCO have continued to explore ways to improve the efficiency and implementation of their relationship; and
WHEREAS, as a result of the foregoing efforts, the Parties have agreed to amend and restate the Original Agreement as set forth in this Agreement.
NOW, THEREFORE, in consideration of the above recitals, the terms and conditions hereinafter set forth, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto agree as follows:
1. DEFINITIONS. For purposes of this Agreement:
1.1 “ABCO Restricted Products and Services” means (a) care management services including, but not limited to, traditional disease management services, direct patient outreach and other service-based care management offerings (e.g., readmissions management teams, nurse call centers, on-site care management teams); (b) care management workflow software designed for and used by provider-owned payor organizations or other entities intending to conduct active care management campaigns targeted at managing population health/longitudinal outcomes (i.e, solutions that are the same as or substantially similar to (i.e. functionality that is redundant in substantial and material respects with) HealthPlaNet); (c) services primarily intended to support cost reduction and benefit changes for health system employees; (d) consulting services comparable and competitive with blueprint consulting services offered by Evolent as of the Effective Date (“Blueprint Services”), (e) Exclusive TPA Services or (f) Crimson Care Registry products. For the avoidance of doubt, Restricted Products and Services does not include behavioral health-related services or software (e.g., Askesis Development Group software), services similar to those offered by UPMC WorkPartners (e.g., “Take-a-Healthy-Step” or similar health and wellness programs, occupational medicine, on-site clinic implementation and administration, employee assistance services, absence management or workers’ compensation services), or software or solutions similar to those offered by EBenefits Solutions, LLC.
1.2 “Active Sales Process”, with respect to any Person as of any date on which Evolent proposes to add such Person to the list of Evolent Top Prospects, means such Person (a) is not an Evolent Client as of such date and (b) either (i) has purchased ABCO Restricted Products and Services from ABCO prior to such date or (b) was engaged in active discussions with ABCO about acquiring ABCO Restricted Products and Services (including, but not limited to, a review of the applicable offering of ABCO Restricted Products and Services) as of such date.
1.3 “Affiliate” means any Person which Controls, is Controlled by, or is in common Control with, another Person.
1.4 “Business Plan” has the meaning set forth in that certain Intellectual Property License and Data Access Agreement between the Parties.
1.5 “Change of Control” with respect to any entity means a transaction or series of related transactions in which a Person, or a group of related Persons, acquires from stockholders of the subject entity, the entity’s shares representing more than fifty percent (50%) of the outstanding voting power of such entity.
1.6 “Confidential Information” means any and all technical and non-technical information, whether conveyed verbally, in writing, electronically or by any other means, including, but not limited to, trade secrets, source code, technology, know-how and proprietary information, techniques, plans or any other information relating to any research project, analysis, work in process, future development, scientific, engineering, marketing or business plans or financial, contractual or personnel matters relating to either Party or its present or future products, services, sales, suppliers, identity of and information relating to customers and prospective customers, customer or prospect list, prospective employees, investors or affiliates or other proprietary information disclosed or otherwise supplied in confidence by either Party to the other, to the extent that such information is provided pursuant to this Agreement by one Party to the other Party and is marked “confidential” or “proprietary” or that should be reasonably understood by the Receiving Party (based on the nature of the information or the context in which the information is disclosed) should be considered confidential. Confidential Information will not include information to the extent that: (a) such information is or becomes publicly available other than through any act or omission of either Party in breach of this Agreement; (b) such information was received by the Receiving Party, other than under an obligation of confidentiality, from a third party who had no obligation of confidentiality to the other Party; (c) such information was in the possession of the Receiving Party at the time of the disclosure or was independently developed by the Receiving Party, as reflected by the Receiving Party’s internal, written and dated documentation; or (d) an applicable regulation, court order or other legal process requires the disclosure of such information, provided that prior to such disclosure the Disclosing Party will give notice to the other Party so that the other Party may take reasonable steps to oppose or limit such disclosure, so that the Disclosing Party does not disclose any more information than necessary to comply with such legal process. The burden of proof that Confidential Information falls into any one of the above exemptions will be borne by the Party claiming such exemption with documentation or other credible evidence.
1.7 “Control” as used with respect to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities, by agreement or otherwise.
1.8 “Evolent Clients” means entities under a current contract with Evolent for an implementation and/or long-term services contract. 1.9 “Evolent Top Prospects” means, as of any date, up to twenty (20) potential Evolent customers in the Evolent sales pipeline identified by Evolent that are not Evolent Clients as of such date, and (a) are engaged in active discussions with Evolent regarding purchasing Evolent products and services and/or (b) are under a current contract with Evolent for Blueprint Services or other services that do not constitute implementation or long-term services; provided, however, that (i) the list of such potential Evolent customers may be updated by Evolent on a quarterly basis, and ABCO shall have the opportunity upon receipt of each such quarterly update to notify Evolent if any of the Persons added to such list are in an Active Sales Process with ABCO and shall therefore be removed from such list, and (ii) no Person shall remain on the list of Evolent Top Prospects for more than (x) twelve (12) consecutive months, in the case of potential Evolent customers without a signed agreement with Evolent, or (y) twenty-four (24) consecutive months, in the case of potential Evolent Clients that signed an agreement for Blueprint Services with Evolent before or within twelve (12) months of being added to the list of Evolent Top Prospects.
1.10 “Exclusive TPA Services” means certain services as set forth on Schedule 1 of the UPMC Reseller Agreement (as in effect on the Effective Date), to the extent that UPMC Health Plan, Inc., a Pennsylvania nonprofit corporation (“UPMC”), has the exclusive right to provide such services to Evolent, for resale by Evolent to its customers.
1.11 “Disclosing Party” means a Party that provides Confidential Information to the other Party, or the other Party’s Affiliates.
1.12 “Governmental Authority” means any federal, state, municipal, local, territorial, or other governmental department, regulatory authority, judicial or administrative body, whether domestic, foreign or international.
1.13 “Law” means all international, federal, country, state, provincial, local and other laws, rules and regulations, declaration, decree, directive, legislative enactment, order, code, ordinance, regulation, rule or other binding restriction of or by any Governmental Authority, as the same are promulgated, supplemented or amended from time to time.
1.14 “Loss” individually, and collectively, “Losses” means all claims, liabilities, obligations, losses, costs, expenses (including, without limitation, legal, accounting and similar expenses), litigation, proceedings, fines, taxes, levies, imposts, duties, deficiencies, assessments, charges, penalties, allegations, demands, damages (including, but not limited to, actual, punitive or consequential, foreseen or unforeseen, known or unknown, fixed or contingent, and matured or unmatured), civil and criminal violations of Law, settlements and judgments of any kind or nature whatsoever.
1.15 “Person” means any individual, corporation, partnership, firm, joint venture, association, limited liability company, limited liability partnership, joint-stock company, trust, joint venture, unincorporated organization, governmental, judicial or regulatory body, business unit, division or any other business entity, organization or Governmental Authority.
1.16 “Receiving Party” means a Party that receives Confidential Information from the other Party or the other Party’s Affiliates.
1.17 “Statement of Work” or “SOW” means an agreement by and between ABCO and Evolent that contains the detailed description of services, scope, specifications, pricing, implementation plan, timetables, milestones, and other terms and conditions for each procurement of services, as applicable.
1.18 “UPMC Reseller Agreement” means that certain Second Amended and Restated Reseller, Services and Non-Competition Agreement between UPMC and Evolent dated as of [the Effective Date].
2. SERVICES TO BE PROVIDED BY ABCO.
2.1 General Services:
2.1.1 Minimum Purchase. The Parties hereby acknowledge and agree that Evolent has purchased from ABCO a minimum of Two Hundred Thousand Dollars ($200,000) of services (as described in Section 2.2.1) (the “Original Minimum Purchase”) for delivery between the Original Effective Date and the first anniversary thereof.
2.1.2 Statements of Work. The specific description, price, service levels (if applicable) and other project, service, and/or customer-specific terms for a particular service that may be provided by ABCO to Evolent (each, a “Service”, and collectively, the “Services”) shall be set forth in a Statement of Work that will be created on a project by project basis.
2.2 Right of First Offer and Process for Invoking:
2.2.1 Applicable Services. Throughout the Term, ABCO shall have the right of first offer to provide the following services to Evolent and Evolent’s customers:
(a) Physician practice management consulting and other physician practice management services;
(b) Physician incentive design services;
(c) Medical home development consulting services; and
(d) Performance analytics shared with physicians with the intent to improve outcomes.
2.2.2 Process for Exercising Right of First Offer. Evolent shall notify ABCO in writing in the event Evolent desires to receive any of the above services (“First Offer Services”). ABCO shall have a period of thirty (30) days (“First Offer Services Evaluation Period”) within which to conduct its evaluation and diligence with respect to providing such First Offer Services. Evolent shall cooperate with ABCO and provide reasonable assistance and information to ABCO to enable ABCO to conduct its evaluation. Within five (5) business days after the expiration of such First Offer Services Evaluation Period, ABCO shall notify Evolent in writing whether or not it wishes to provide such services to Evolent. If ABCO elects to provide such First Offer Services, Evolent agrees to engage in good faith negotiations with ABCO, on an exclusive basis for a period of sixty (60) days, regarding the specific terms covering such First Offer Services.
2.3 Failure to Execute a Service Agreement for the VBC Innovation Center: The Parties acknowledge and agree that it was their intent as of the Original Effective Date to enter into a service agreement under which Evolent would engage ABCO to provide certain consulting, development and support services in connection with the creation, launch, implementation and ongoing support of a Value-Based Care Innovation Center (the “VBC Innovation Center”), in consideration for which Evolent would pay ABCO a fixed fee of Eight Hundred Thousand Dollars ($800,000) per year (“Fixed Fee”) for each of the first two (2) years of the term of such VBC Innovation Center service agreement. The Parties acknowledge and agree that, notwithstanding the fact that they negotiated with diligence and in good faith the specific terms and conditions of such service agreement, the Parties were unable to reach an agreement with respect to the VBC Innovation Center. Accordingly, the Original Minimum Purchase is increased to One Million Two Hundred Thousand Dollars ($1,200,000) (the “Minimum Purchase”) as follows: (a) between the Original Effective Date and the second anniversary thereof, Evolent shall have purchased from ABCO a minimum of Seven Hundred Thousand Dollars ($700,000) of services for delivery on or prior to such second anniversary of the Original Effective Date), and (b) inclusive of the purchases described in clause (a), between the Original Effective Date and the third anniversary thereof, Evolent shall have purchased from ABCO a minimum of One Million Two Hundred Thousand Dollars ($1,200,000) of services for delivery on or prior to such third anniversary of the Original Effective Date); provided that, for purposes of this sentence, “services” shall include consulting, software, professional or analytic services provided from time to time by ABCO to Evolent (other than services in connection with the provision of any office space by or on behalf of ABCO to Evolent) or, pursuant to a joint written proposal by ABCO and Evolent, to any Evolent Client.
2.4 Reservation of Rights: For the avoidance of doubt, Evolent is not precluded from offering and providing services directly to its customers, subject (a) to (i.e., after ABCO has had the full opportunity to exercise) ABCO’s right of first offer to provide any First Offer Services in accordance with Section 2.2) and (b) to Evolent’s compliance with its non-competition obligations as set forth in Section 6.2.
2.5 Designation of Relationship Managers: In order to support the launch and ongoing success of the exclusive reseller relationship between ABCO and Evolent, each Party agrees to designate a senior level individual who will serve as the primary liaison and “go to” contact and relationship manager for such Party (each, a “Relationship Manager”). Each Party’s Relationship Manager’s role and responsibilities would include: (a) facilitating day-to-day communications between the Parties regarding customer-facing activities, such as marketing, promotional and sales activities and preparing and submitting bids, proposals, responses to requests for proposals, fee estimates, Statements of Work and project plans; (b) receiving and submitting requests between the Parties for information and/or assistance; (c) overseeing the efficient knowledge transfer and flow of information between the Parties; (d) facilitating communications between the appropriate individuals within Evolent and ABCO, with respect to product and service offering development; and (e) providing the first level of performance review or escalation in the event of a Dispute as provided in Section 13. The Relationship Managers will meet regularly, but no less frequently than monthly, as reasonably necessary, to maintain a good working relationship between the Parties. Each Party may change its Relationship Manager by giving the other Party reasonable notice as long as the change is implemented in a manner that does not cause any significant disruption to each Party’s business operations and business relationship.
3. FEES; PAYMENT TERMS; SHORTFALL.
3.1 Fees; Timing of Payments: Evolent shall pay ABCO the applicable fees for the Services performed by ABCO pursuant to a Statement of Work, as follows: (a) unless the Parties otherwise agree in writing, a deposit of 50% of the total fees for the particular project shall be paid upon signing of the Statement of Work; (b) ABCO will submit an invoice to Evolent for the balance upon completion of the work; and (c) Evolent shall pay ABCO for such invoiced amount within thirty (30) days after receipt of such invoice.
3.2 Minimum Purchase and Shortfall: Evolent agrees to pay ABCO the Minimum Purchase. If the aggregate amount of Services actually procured by Evolent from ABCO is not equal to or greater than (a) Seven Hundred Thousand Dollars ($700,000) of services for delivery on or prior to the second anniversary of the Original Effective Date or (b) inclusive of the purchase described in clause (a), the Minimum Purchase of services for delivery on or prior to the third anniversary of the Original Effective Date, Evolent shall pay ABCO the amount of the shortfall (i.e., the difference between Seven Hundred Thousand Dollars ($700,000) or the Minimum Purchase amount, as applicable, less the sum of: (a) the aggregate fees for the actual amount of Services procured; and (b) any Credits (as provided in the next sentence) (the “Shortfall”), if any, on or before August 31, 2013 or August 31, 2014, as applicable. In the event that ABCO refuses or fails, without reasonable cause, to provide any of the Services requested by Evolent (provided the scope of the Services requested is within the scope customarily provided by ABCO), the fees that would otherwise have been applicable had ABCO agreed to provide such Services would count as a “Credit”. As of the date hereof, no such Credits have accrued.
4. TERM AND RENEWAL. The initial term of this Agreement shall commence on the Effective Date and unless sooner terminated in accordance with the terms hereof, shall continue until August 31, 2016 (“Initial Term”). Thereafter, this Agreement shall automatically be renewed for another five-year term (“Renewal Term”) unless either Party elects to terminate this Agreement by providing the other Party with written notice of termination one hundred eighty (180) days prior to the expiration of the current term. (“Initial Term” and “Renewal Term” collectively, the “Term”).
5. REFERRAL FEES, SOLICITATION AND COMPETITION AND POST-CLOSING SERVICES.
5.1 Referral Fees:
5.1.1 During the Term, ABCO will pay Evolent a sales referral fee for any sale made by ABCO that resulted from a “net” new sale from a new customer that was not already in ABCO’s sales pipeline (i.e., a “warm lead”) or a then-current customer of ABCO generated directly by Evolent’s efforts and without any assistance from any ABCO employee or representative (including any Evolent employee that serves on the Board of Directors of ABCO), equal to 5% of the total ABCO revenue from the new customer during the initial twelve (12) months of services under the services agreement with such new customer.
5.1.2 During the Term, Evolent will pay ABCO a sales referral fee for any sale made by Evolent that resulted from a “net” new sale from a new customer that was not already in Evolent’s sales pipeline (i.e., a “warm lead”) or a then-current customer of Evolent generated directly by ABCO’s efforts and without any assistance from any Evolent employee or representative (including any ABCO employee that serves on the Board of Directors of Evolent), in accordance with the following terms:
(a) ABCO will receive a one-time referral fee for any “employee health” diagnostic, consulting or broker services provided by Evolent to a Covered Health System, equal to the lesser of $20,000 or 5% of the total Evolent revenue from the Covered Health System during the initial twelve (12) months of services under the service agreement with such Covered Health System.
(b) ABCO will receive $50,000 per year for three (3) years for each health system joining Evolent as an Employee Health Platform Customer. An “Employee Health Platform Customer” is defined as a health system purchasing diagnostic/consulting services and ongoing medical management/health plan services (i.e., care management, HealthPlaNet care management application, and the TPA platform, etc.).
(c) ABCO will receive $100,000 per year for three (3) years for a health system joining Evolent as a Platform Health Plan Customer. A “Platform Health Plan Customer” is defined as a health system purchasing ongoing medical management services, ongoing health plan outsourcing services (i.e., TPA) and health plan management services for purposes of a licensed insurance entity with at least fifty thousand (50,000) lives (beyond the employee population).
(d) With the exception of making the introduction (either through an email or an in-person meeting) (to generate the “warm lead”), ABCO would not be expected to perform any actual duties or incur actual cost to receive a referral fee.
(e) The annual referral fees for each referral would be capped at the lesser of (x) 5% of annual revenue generated by Evolent for the respective customer and (y) the $50,000 or $100,000 figures described above, as applicable.
6. SOLICITATION AND COMPETITION.
6.1 Scope:
6.1.1 Throughout the Term, ABCO agrees not to offer any ABCO Restricted Products and Services to (a) any Evolent Clients or (b) any Evolent Top Prospects; provided, however, that ABCO shall not be restricted from making any such offer to any Evolent Top Prospect or Evolent Client with whom ABCO was, at the time such Person was identified as an Evolent Top Prospect or became an Evolent Client, engaged in an Active Sales Process. The foregoing restrictions shall not apply in the event of a Change of Control of Evolent or in the event that ABCO ceases to be a shareholder of Evolent.
6.1.2 None of the foregoing would prohibit ABCO from:
(a) Marketing, offering, licensing or selling versions of any of its Crimson Population Risk Management products, or the successors to any such products, provided that such products, or the successors to any such products, are not the same as or substantially similar to (i.e., includes functionality that is redundant in substantial and material respects with) HealthPlaNet as it exists as of the Effective Date.
(b) Supporting employers with care management related best practices and research.
(c) Offering traditional “dedicated advisor” support in conjunction with ABCO’s traditional business intelligence offerings.
(d) Marketing, offering, licensing or selling its employer health product.
(e) Providing physician management consulting and other physician management services.
6.2 Restrictions Relating to Certain ABCO Products and Services: Evolent shall not, until the earlier of (x) ABCO’s ceasing to be a shareholder of Evolent or (y) the seventh (7 ) anniversary of the date of this Agreement, promote, market, provide, offer or sellth (a) unbundled software applications, software tools or other similar technologies (including, without limitation, software as a service, analytics technology or data services) (each, a “Technology Solution”), (b) consulting services that are not intended to lead to or be a part of a Blueprint Services engagement, implementation contract and/or long-term services contract, or (c) any best practices membership programs or unbundled or bundled physician practice management and other physician practice management consulting services, in each case referred to in this clause (c) that are substantially similar to, or that are competitive with, ABCO’s best practices membership programs or physician practice management or other physician practice management consulting services that are offered by ABCO as of the date first written above. For the avoidance of doubt, “unbundled” means on a stand-alone basis, instead of “bundled”, which contemplates that the Technology Solution is both (i) offered as part of a “packaged”, integrated offering, in conjunction with other Evolent products or services that are not Technology Solutions (and not only services that constitute customary software, data and end user support-related services), such as the Exclusive TPA Services, and (ii) incidental to the provision of such other Evolent products or services. Notwithstanding any other provision hereof, the foregoing restrictions in this Section 6.2 shall survive a Change of Control of Evolent for seven (7) years from the date of this Agreement; provided, however, that prior to the seventh (7 ) anniversary of the date of thisth Agreement, the acquiring party in a Change of Control of Evolent shall be not be subject to the foregoing restrictions with respect to any Technology Solutions or consulting services, in each case, that are unrelated to the Evolent assets acquired.
6.3 Non-Solicitation or Hiring: During the Term and for a period of eighteen (18) months thereafter, Evolent shall not solicit or hire any of ABCO’s employees without ABCO’s prior written consent.
7. EXCLUSIVE RESELLER RIGHTS FOR FUTURE PRODUCTS.
In the event that Evolent creates a discrete or segregable product or service that can be sold to healthcare providers, Evolent shall notify ABCO in writing of such new offerings (“New Products”). ABCO shall have a period of ninety (90) days (“New Products Evaluation Period”) within which to conduct its evaluation and diligence with respect to providing such New Products. Evolent shall cooperate with ABCO and provide reasonable assistance and information to ABCO to enable ABCO to conduct its evaluation. Within five (5) business days after the expiration of such New Products Evaluation Period, ABCO shall notify Evolent in writing whether or not it wishes to have the right to resell such New Products. If ABCO elects to resell such New Products, Evolent and ABCO agree to negotiate in good faith on an exclusive basis for one hundred twenty (120) days the terms of a reseller agreement, under which ABCO would be the exclusive distributor (in addition to Evolent) of such New Products.
8. CONFIDENTIALITY.
8.1 Confidential Information: ABCO acknowledges that in connection with its rights and obligations under this Agreement it may gain access to the Confidential Information of Evolent and its customers and Affiliates. Evolent acknowledges that in connection with its rights and obligations under this Agreement, it may gain access to the Confidential Information of ABCO and its customers and Affiliates.
8.2 Non-Disclosure: The Receiving Party may disclose the Disclosing Party’s Confidential Information strictly on a need-to-know basis to only those personnel, including employees of the Receiving Party’s contractors, who require access to the Disclosing Party’s Confidential Information in order to perform or derive benefit from the Services or otherwise meet its obligations under this Agreement. The Receiving Party agrees: (a) to hold the Disclosing Party’s Confidential Information in strict confidence, using the same degree (but no less than a reasonable degree) of care and protection that it exercises with its own Confidential Information of a similar nature; (b) not to directly or indirectly disclose or otherwise make available any Confidential Information of the Disclosing Party to a third party; and (c) not to copy or use the Disclosing Party’s Confidential Information for any purpose other than as necessary to fulfill the Receiving Party’s obligations or exercise its rights under this Agreement. Each Receiving Party is responsible for ensuring that its employees, agents and contractors strictly abide by the requirements of confidentiality and restrictions on use as provided in this Section 8.2 and shall be liable to the Disclosing Party for any acts or omissions of its employees, agents and independent contractors relating to the Disclosing Party’s Confidential Information. The Receiving Party is allowed to disclose Confidential Information of the Disclosing Party to the extent required by Law or by the order or a court of similar judicial or administrative body with jurisdiction, provided that the Receiving Party notifies the Disclosing Party of such required disclosure promptly and in writing and cooperates with the Disclosing Party, at the Disclosing Party’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure. The provisions of this Section 8 shall survive beyond the expiration or termination of this Agreement.
8.3 Injunctive Relief: The Parties acknowledge and agree that monetary damages may be inadequate to compensate for a breach of the provisions contained in this Section 8 or other confidentiality provisions of this Agreement. In the event of such breach, the injured Party shall be entitled to seek injunctive relief (without the need to post bond) and any and all other remedies available at Law or in equity. This Section 8.3 in no way limits the liability or damages that may be assessed against a Party in the event of a breach by the other Party of any of the provisions of this Section 8.
8.4 Residuals: Notwithstanding anything in this Section 8 to the contrary, subject to any applicable statutory intellectual property rights applicable to patents, trademarks or copyrights, either Party may use “Residuals” for any purpose, including without limitation, for use in development, manufacture, promotion, sale and maintenance of its products and services; provided, however, that this right to Residuals does not represent a license under any patents, copyrights or trademarks of the Disclosing Party. The term “Residuals” means any information that is retained in the unaided memories of the Receiving Party’s employees who have had access to the Disclosing Party’s Confidential Information pursuant to the terms of this Agreement.
9. WARRANTIES.
9.1 Authority/No Conflict: ABCO represents and warrants that (a) it has the power and authority to enter into and perform its obligations under this Agreement without conflict with, default under, or violation of any Law, regulation, or agreement binding upon it, and (b) this Agreement has been duly authorized by all necessary organizational action, and duly and validly executed and delivered by it, and constitutes its legally valid and binding obligation, enforceable in accordance with its terms.
9.2 Services: ABCO represents, warrants and covenants that the Services provided under this Agreement will be performed in a professional and workmanlike manner.
9.3 Compliance with Laws/Approvals: Each of ABCO and Evolent shall comply in all material respects with all Laws and regulations applicable to ABCO or Evolent, as applicable, in performing its obligations under this Agreement. To the extent applicable, ABCO shall be responsible for obtaining all necessary permits, licenses, and consents, including governmental approvals, required of ABCO and its contractors in connection with the performance of its obligations under this Agreement, and Evolent shall be responsible for obtaining all necessary permits, licenses, and consents, including governmental approvals, required of Evolent and its contractors in connection with the performance of its obligations under this Agreement.
9.4 Limitations of Warranty: EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, ABCO MAKES NO OTHER WARRANTY OR REPRESENTATION, ORAL, WRITTEN, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE SERVICES, INCLUDING WITHOUT LIMITATION, THEIR QUALITY, PERFORMANCE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, UNINTERRUPTED OR ERROR-FREE OPERATION OR OTHERWISE HEREUNDER. The disclaimer of warranties and limitations set forth in this Agreement constitute an essential part of this Agreement.
10. INDEMNIFICATION.
10.1 IP Indemnification: ABCO shall defend, indemnify and hold harmless Evolent and its Affiliates (other than ABCO), customers, and their respective officers, directors and employees from and against any Losses resulting from a claim that the Services provided by ABCO under this Agreement infringes or misappropriates a third party’s intellectual property rights. ABCO shall also use commercially reasonable efforts to modify the allegedly infringing Services to make it non-infringing, procure a license from the third party claiming infringement to permit Evolent to continue to use the Services, or provide Evolent with functionally equivalent and non-infringing Services. THIS SECTION 10.1 SETS FORTH ABCO’S SOLE AND EXCLUSIVE LIABILITY, AND EVOLENT’S SOLE AND EXCLUSIVE REMEDY, FOR ALLEGATIONS OR CLAIMS OF INFRINGEMENT OF THIRD PARTY RIGHTS OF ANY KIND ASSERTED AGAINST EVOLENT, ITS AFFILIATES (OTHER THAN ABCO), CUSTOMERS AND THEIR RESPECTIVE OFFICERS, DIRECTORS AND EMPLOYEES. ABCO shall not be obligated to indemnify Evolent, its Affiliates, customers, and their respective officers, directors and employees for infringement or misappropriation claims to the extent such claims arise out of use by Evolent or its customers of any of the Services in a manner other than as contemplated by the Parties under this Agreement.
10.2 ABCO’s Indemnification: ABCO hereby agrees to indemnify, defend, and hold Evolent and its Affiliates (other than ABCO), and all of their respective directors, officers, members, managers, partners, employees, agents, successors and assigns, harmless from and against any Losses arising from or related to: (a) the material breach of this Agreement, including any or all SOWs, by ABCO or its personnel (including contractors); (b) breach of any of ABCO’s representations, warranties, and covenants in this Agreement; or (c) negligence or willful misconduct by ABCO or its personnel (including contractors).
10.3 Evolent’s Indemnification: Evolent hereby agrees to indemnify, defend, and hold ABCO and its Affiliates (other than Evolent), and all of their respective directors, officers, members, managers, partners, employees, agents, successors and assigns, harmless from and against any Losses arising from or related to: (a) the material breach of this Agreement, including any or all SOWS, by Evolent or its personnel (including contractors); (b) breach of any of Evolent’s representations, warranties and covenants in this Agreement; or (c) negligence or willful misconduct by Evolent or its personnel (including contractors).
10.4 Indemnification Procedure:
10.4.1 Notice of Claim. Any Party seeking indemnification hereunder (the “Indemnitee”) shall notify the Party liable for such indemnification (the “Indemnitor”) in writing of any event, omission or occurrence that the Indemnitee has determined has given or could give rise to Losses that are indemnifiable hereunder (such written notice being hereinafter referred to as a “Notice of Claims”). Such Notice of Claims shall be given promptly after the Indemnitee becomes aware of its own claim or that of a third party; provided that the failure of any Indemnitee to give notice as provided in this Section 10.4.1 shall not relieve the Indemnitor of its obligations under this Section 10. A Notice of Claims shall specify in reasonable detail the nature and any particulars of the event, omission, or occurrence giving rise to a right of indemnification. The Indemnitor shall satisfy its obligations hereunder, as the case may be, within thirty (30) days of its receipt of a Notice of Claims.
10.4.2 Process. With respect to any third party claim, demand, suit, action, or proceeding that is the subject of a Notice of Claim, the Indemnitor shall, in good faith and at its own expense, defend, contest, or otherwise protect against any such claim, demand, suit, action, or proceeding with legal counsel of its own selection (and reasonably acceptable to the Indemnitee). The Indemnitee shall have the right, but not the obligation, to participate, at its own expense, in the defense thereof through counsel of its own choice and shall have the right, but not the obligation, to assert any and all cross claims or counterclaims it may have. So long as the Indemnitor is defending in good faith any such third party claim, demand, suit, action or proceeding, the Indemnitee shall at all times cooperate, at its own expense, in all reasonable ways with, make its relevant files and records available for inspection and copying by, and make its employees available or otherwise render reasonable assistance to, the Indemnitor. In the event that the Indemnitor fails to timely defend, contest or otherwise protect against any such third party claim, demand, suit, action, or proceeding, the Indemnitee shall have the right, but not the obligation, to defend, contest, assert cross claims or counterclaims, or otherwise protect against, the same and may make any compromise or settlement thereof and be entitled to all amounts paid as a result of such third party claim, demand, suit, or action or any compromise or settlement thereof. The Indemnitor will not consent to the entry of any judgment or enter into any settlement with respect to any such third party claim, demand, suit, action or proceeding without the prior written consent of the Indemnitee, which will not be unreasonably withheld, and provided that no settlement shall require the Indemnitee to admit liability, or perform or become subject to additional obligations thereunder.
11. LIMITS OF LIABILITY. EXCEPT WITH RESPECT TO OR BREACH BY EITHER PARTY OF THE OTHER PARTY’S CONFIDENTIAL INFORMATION UNDER SECTION 8,
NEITHER EVOLENT NOR ABCO SHALL BE LIABLE FOR, NOR WILL THE MEASURE OF DAMAGES INCLUDE, ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OR AMOUNTS INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF INCOME, PROFITS, OR SAVINGS, LOSS OF DATA, OR COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES, ARISING OUT OF OR RELATING TO ITS PERFORMANCE UNDER THIS AGREEMENT UNDER ANY CAUSE OF ACTION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL EITHER PARTY’S LIABILITY EXCEED THE AMOUNT OF REVENUE ACTUALLY RECEIVED BY ABCO IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO THE CLAIM.
12. TERMINATION.
12.1 Termination for Cause: Either Party shall have the right to terminate this Agreement in the event the other Party materially violates a material provision of this Agreement and such violation is not cured or cannot be cured within thirty (30) days after written notice of such material violation.
12.2 Survival: The rights and obligations contained in Sections 1, 5 (with respect to Evolent’s payment obligations that may extend beyond the Term), 6.2, 6.3, 8, 9.4, 10, 11, 12.2, 13 and 14 shall survive any termination or expiration of this Agreement.
13. ESCALATION; DISPUTE RESOLUTION. Subject to the terms of Section 13.5, the procedures of this Section 13 will control the resolution of any and all disputes between the Parties including, without limitation, any dispute relating to disputed monies owing or breach of warranty (each, a “Dispute”). The Parties will seek to resolve each Dispute as follows:
13.1 First Level Performance Review: Each Party’s Relationship Manager will meet as often as will reasonably be required by either Party to review the performance of either Party under this Agreement and to resolve the Dispute. If these representatives are unable to resolve the Dispute within ten (10) business days after the initial request for a meeting, then the Parties will submit the Dispute to an executive level performance review as provided in Section 13.2 below.
13.2 Executive Level Performance Review: Face-to-face negotiations will be conducted by a senior executive officer of each Party (or such other executive as a Party may designate). If these representatives are unable to resolve the Dispute within five (5) business days after the Parties have commenced negotiations or ten (10) business days have passed since the initial request for a meeting at this level, then the Parties may jointly engage the services of a third-party mediator.
13.3 Arbitration: If the Parties are unable to resolve the Dispute through the alternative mechanisms described above, the Parties shall submit the Dispute for resolution through binding arbitration, except as otherwise provided in Section 13.5. The Parties agree and consent to such arbitration proceeding taking place in Wilmington, Delaware, and in accordance with the Commercial Arbitration Rules of the American Arbitration Association, except that discovery may be had in accordance with the Federal Rules of Civil Procedure. The Parties shall be permitted at least six (6) months from the date of the filing of the Arbitration Demand to conduct discovery. The arbitration proceedings shall be conducted by a panel of three (3) impartial arbitrators, with each Party selecting one (1) of the impartial arbitrators and those two (2) arbitrators then selecting the third impartial arbitrator, all such selections to be made through the procedures of the American Arbitration Association. At least one (1) arbitrator must be an attorney licensed under the Laws of Pennsylvania and at least one (1) arbitrator (may be the same Person as the Pennsylvania attorney) must have direct and substantial experience in the industry pertinent to the subject matter of the Dispute. Judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof; provided, however, in rendering its decision, the arbitrators shall be bound by the Laws of the Commonwealth of Pennsylvania (without regard to its conflicts of laws provisions) and by the terms and conditions of this Agreement setting forth the rights and responsibilities of the Parties. The decision of the arbitration panel shall be accompanied by a written opinion setting forth the factual and legal bases for the award. The arbitrators shall issue such written decision within thirty (30) days of the conclusion of the arbitration hearing. The arbitrators appointed hereunder shall not have the power to award punitive damages. Service of a petition to confirm the arbitration award may be made by United States mail, postage prepaid, or by any regularly conducted commercial express mail service, to the attorney for the Party or, if not so represented, to the Party at the address set forth herein, or to the Party’s last known business address. The prevailing Party in any action related to or arising under this Agreement shall be entitled to reasonable attorneys’ fees and costs.
13.3.1 For any Dispute in which the amount in controversy is at least One Million Dollars ($1,000,000), the following additional procedures apply:
(a) a certified court reporter shall transcribe the arbitration hearings; The Parties initially split the cost of the reporter, but such costs shall ultimately be awarded to the Party prevailing in the arbitration proceeding; and
(b) either Party may take an appeal from the final decision by making a written demand within twenty (20) days of the award.
13.3.2 Any such appeal shall be conducted as follows:
(a) such appeals are limited to issues of Law (i.e., the original award (1) contains material errors of Law such that the original award is not founded on any appropriate legal basis; (2) is based on factual findings clearly unsupported by the record; or (3) is subject to one or more grounds set forth in Section 10 of the Federal Arbitration Act or 42 Pa. C.S.A. §7341 for vacating an award);
(b) the Person hearing the appeal shall be a former federal judge mutually agreed to by the Parties or selected through the procedures of the American Arbitration Association. The former judge shall act as the appellate arbitrator;
(c) the submissions on appeal are limited to (1) the record of the arbitration, (2) a 30-page brief by the appellant, (3) a 30-page brief by the appellee and (4) a 10-page response by the appellant. The appellate arbitrator will set the dates for submission of the briefs. Oral argument may be heard at the discretion of the appellate arbitrator;
(d) the appellate arbitrator shall render a written decision within sixty (60) days of the final submission;
(e) during the pendency of the arbitration appeal, the Parties agree to suspend any running of the time to seek enforcement of the original award. The Parties also agree to waive any appeal to state or federal courts based on the grounds set forth in Section 10 of the Federal Arbitration Act for vacating an award and 42 Pa. C.S.A. § 7341;
(f) the appellate arbitrator must award costs and attorneys’ fees to the prevailing Party; and
(g) the decision of the appellate arbitrator shall be final.
13.4 Continued Performance: Each Party acknowledges that the timely and complete performance of its obligations pursuant to this Agreement is critical to the business and operations of the other Party. Accordingly, in the event of a Dispute, each Party shall continue to so perform all of its obligations under this Agreement, in good faith during the resolution of such Dispute unless and until (a) authority to stop doing so is granted or conferred by a court of competent jurisdiction or (b) this Agreement is terminated in accordance with the provisions hereof.
13.5 Equitable Relief: Notwithstanding anything contained in this Agreement to the contrary, the Parties will be entitled to seek injunctive relief, specific performance or other equitable relief whenever the facts or circumstances would permit a Party to seek equitable relief in a court of competent jurisdiction. Without limiting the generality of the foregoing, (a) Evolent agrees that there would be irreparable harm to ABCO in the event of any such breach by Evolent of Section 6.2 and ABCO shall be entitled to (i) injunctive relief to prevent breaches of Section 6.2, (ii) specific performance of this Agreement, and (iii) any other remedies provided by Law or equity, including without limitation an award for damages, and (b) ABCO agrees that there would be irreparable harm to Evolent in the event of any such breach by ABCO of Section 6.1.1, and Evolent shall be entitled to (i) injunctive relief to prevent breaches of Section 6.1.1, (ii) specific performance of this Agreement, and (iii) any other remedies provided by Law or equity, including without limitation an award for damages.
14. MISCELLANEOUS PROVISIONS.
14.1 Good Faith and Mutual Agreement: Unless otherwise expressly stated in such provision, if a provision in this Agreement calls for the consent of a Party or the mutual agreement of the Parties, the Parties agree that each will act in good faith, will not unreasonably withhold their consent and that deference shall be given to the other Party’s reasonable business requirements, and the requirements of the Parties’ respective regulators and internal controls procedures.
14.2 Independent Contractor: The relationship of ABCO to Evolent shall at all times be that of an independent contractor. Nothing in this Agreement shall be construed to create any partnership, association, joint venture, or employment between the Parties. Each Party shall have the sole and exclusive control over the labor and employee relations policies and policies relating to wages, hours, working conditions, benefits, or other conditions of its personnel and shall be responsible and liable for the acts and omissions of its employees, agents and contractors.
14.3 Assignability: Evolent has entered into this Agreement because of the expertise of ABCO, and ABCO understands that the obligations of ABCO are personal to ABCO and may not be assigned to any other company, partnership or individual without the express written consent of Evolent; provided, however, that no consent shall be required if an assignment is made in connection with a sale of all or substantially all of ABCO’s assets or stock, or in connection with a merger or Change of Control. Evolent may assign this Agreement (including the licenses granted pursuant to this Agreement) to any Affiliate of Evolent as part of an internal reorganization or in connection with a sale of substantially all of its assets or stock, or in connection with a merger or Change of Control.
14.4 Governing Law and Jurisdiction: This Agreement shall be governed by and construed and enforced in accordance with the Laws of the Commonwealth of Pennsylvania, without regard to that state or any other state’s conflicts of law rules. Each Party irrevocably consents to the personal jurisdiction of the state and federal courts located in Wilmington, Delaware for any suit or action arising from or related to this Agreement.
14.5 Force Majeure: Neither Party shall be deemed in default of this Agreement to the extent that performance of their obligations or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, act of government, or any other cause beyond the control of such Party, provided that such Party gives the other Party written notice thereof promptly and, in any event, within fifteen (15) days of discovery thereof, and uses its commercially reasonable efforts to cure any such breach.
14.6 Entire Agreement: This Agreement and its exhibits, schedules, and attachments constitute the entire understanding between the Parties with respect to the subject matter hereof and supersede all prior written or oral representations with respect to the subject matter hereof. This Agreement may not be modified, amended, or otherwise changed in any manner except by a written instrument executed by the Party against whom enforcement is sought.
14.7 Cumulative Remedies: Except as expressly provided in this Agreement, (a) remedies for breach are cumulative and may be exercised separately or concurrently, (b) the exercise of one remedy is not an election of that remedy to the exclusion of others, and (c) the provision for any remedy in this Agreement shall not affect remedies otherwise available at Law or in equity.
14.8 No Third Party Beneficiaries: The Parties do not intend that this Agreement creates any right or cause of action in or on behalf of any Person other than Evolent and ABCO.
14.9 Headings: Section headings have been included in this Agreement merely for convenience of reference. They are not to be considered part of, or to be used in interpreting this Agreement.
14.10 Binding Effect: The covenants and conditions contained herein will apply to and bind the successors, representatives, and permitted assigns of the Parties.
14.11 Expenses: Each Party shall be responsible for its own legal, accounting and other transaction costs relating to the transactions contemplated in this Agreement.
14.12 Notices: All notices required to be given hereunder shall be in writing and given hereunder, as elected by the Party giving notice, as follows: (a) by personal delivery, (b) sent by overnight courier with confirmation of receipt, or (c) dispatched by certified or registered mail, return receipt requested, postage prepaid, addressed to the Parties as follows.
If to Evolent: Evolent, Inc.
800 N. Glebe Road, Suite 500
Arlington, VA 22203
Attention: President
Morgan Lewis & Bockius, LLP
225 Franklin Street
Boston, MA 02110
Attention: Mark B. Stein, Esq.
Fax No.: (617) 341-7701
If to ABCO: The Advisory Board Company
2445 M St. NW
Washington, DC 20037
Attention: General Counsel
Notice shall be deemed given (a) on the date of receipt if delivered personally; (b) on the business day following delivery of such notice to the overnight courier; or (c) three (3) business days after deposit in the mail in accordance with the foregoing. Either Party may change the address to which to send notices by notifying the other Party of such change of address in writing in accordance with the foregoing.
14.13 Press Releases: No press releases or other public announcements concerning the transactions contemplated by this Agreement shall be made by ABCO or Evolent without the prior written consent of both Parties; provided, however, that nothing herein shall prevent a Party from supplying such information or making statements as required by governmental authority or in order for a Party to satisfy its legal obligations (prompt notice of which shall in any such case be given to the other Party).
14.14 Severability: Any terms or provisions of this Agreement that shall prove to be invalid, void or illegal shall in no way affect, impair, or invalidate any other term or provision herein and such remaining terms and provisions shall remain in full force and effect provided that its general purposes are still reasonably capable of being effected. All such terms or provisions which are determined by a court of competent jurisdiction or other dispute resolution proceeding to be invalid, void or illegal shall be construed and limited so as to allow the maximum effect permissible by Law.
14.15 Waiver: The waiver by either Party to this Agreement of any one or more defaults, if any, on the part of the other, shall not be construed to operate as a waiver of any other or future defaults under the same or different terms, conditions or covenants contained in this Agreement.
IN WITNESS WHEREOF, the Parties have executed this Agreement effective as of the date first written above.
THE ADVISORY BOARD COMPANY EVOLENT HEALTH, INC.
/s/ Evan Farber
By: Evan Farber By:
Its: General Counsel Its:
[Signature Page to Amended and Restated Services, Reseller and Non-Competition Agreement]
IN WITNESS WHEREOF, the Parties have executed this Agreement effective as of the date first written above.
THE ADVISORY BOARD COMPANY EVOLENT HEALTH, INC.
/s/ Frank Williams
By: By: Frank Williams
Its: Its: CEO
| Entailment |
622_nda-8 | 622_nda-8_0 | Q: Receiving Party shall notify Disclosing Party in case Receiving Party is required by law, regulation or judicial process to disclose any Confidential Information.
Text: Exhibit 10.16
AMENDED AND RESTATED
SERVICES, RESELLER AND NON-COMPETITION AGREEMENT
THIS AMENDED AND RESTATED SERVICES, RESELLER AND NON-COMPETITION AGREEMENT (this “Agreement”) is made and entered into effective as of June 27, 2013 (the “Effective Date”) by and between The Advisory Board Company, a Delaware corporation (“ABCO”), and Evolent Health, Inc. (f/k/a VPHealth, Inc.), a Delaware corporation (“Evolent”), (each, a “Party”, and collectively, the “Parties”).
RECITALS
WHEREAS, ABCO and Evolent entered into a Services, Reseller and Non-Competition Agreement (the “Original Agreement”), effective as of August 31, 2011 (the “Original Effective Date”);
WHEREAS, since entering into the Original Agreement, Evolent and ABCO have continued to explore ways to improve the efficiency and implementation of their relationship; and
WHEREAS, as a result of the foregoing efforts, the Parties have agreed to amend and restate the Original Agreement as set forth in this Agreement.
NOW, THEREFORE, in consideration of the above recitals, the terms and conditions hereinafter set forth, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto agree as follows:
1. DEFINITIONS. For purposes of this Agreement:
1.1 “ABCO Restricted Products and Services” means (a) care management services including, but not limited to, traditional disease management services, direct patient outreach and other service-based care management offerings (e.g., readmissions management teams, nurse call centers, on-site care management teams); (b) care management workflow software designed for and used by provider-owned payor organizations or other entities intending to conduct active care management campaigns targeted at managing population health/longitudinal outcomes (i.e, solutions that are the same as or substantially similar to (i.e. functionality that is redundant in substantial and material respects with) HealthPlaNet); (c) services primarily intended to support cost reduction and benefit changes for health system employees; (d) consulting services comparable and competitive with blueprint consulting services offered by Evolent as of the Effective Date (“Blueprint Services”), (e) Exclusive TPA Services or (f) Crimson Care Registry products. For the avoidance of doubt, Restricted Products and Services does not include behavioral health-related services or software (e.g., Askesis Development Group software), services similar to those offered by UPMC WorkPartners (e.g., “Take-a-Healthy-Step” or similar health and wellness programs, occupational medicine, on-site clinic implementation and administration, employee assistance services, absence management or workers’ compensation services), or software or solutions similar to those offered by EBenefits Solutions, LLC.
1.2 “Active Sales Process”, with respect to any Person as of any date on which Evolent proposes to add such Person to the list of Evolent Top Prospects, means such Person (a) is not an Evolent Client as of such date and (b) either (i) has purchased ABCO Restricted Products and Services from ABCO prior to such date or (b) was engaged in active discussions with ABCO about acquiring ABCO Restricted Products and Services (including, but not limited to, a review of the applicable offering of ABCO Restricted Products and Services) as of such date.
1.3 “Affiliate” means any Person which Controls, is Controlled by, or is in common Control with, another Person.
1.4 “Business Plan” has the meaning set forth in that certain Intellectual Property License and Data Access Agreement between the Parties.
1.5 “Change of Control” with respect to any entity means a transaction or series of related transactions in which a Person, or a group of related Persons, acquires from stockholders of the subject entity, the entity’s shares representing more than fifty percent (50%) of the outstanding voting power of such entity.
1.6 “Confidential Information” means any and all technical and non-technical information, whether conveyed verbally, in writing, electronically or by any other means, including, but not limited to, trade secrets, source code, technology, know-how and proprietary information, techniques, plans or any other information relating to any research project, analysis, work in process, future development, scientific, engineering, marketing or business plans or financial, contractual or personnel matters relating to either Party or its present or future products, services, sales, suppliers, identity of and information relating to customers and prospective customers, customer or prospect list, prospective employees, investors or affiliates or other proprietary information disclosed or otherwise supplied in confidence by either Party to the other, to the extent that such information is provided pursuant to this Agreement by one Party to the other Party and is marked “confidential” or “proprietary” or that should be reasonably understood by the Receiving Party (based on the nature of the information or the context in which the information is disclosed) should be considered confidential. Confidential Information will not include information to the extent that: (a) such information is or becomes publicly available other than through any act or omission of either Party in breach of this Agreement; (b) such information was received by the Receiving Party, other than under an obligation of confidentiality, from a third party who had no obligation of confidentiality to the other Party; (c) such information was in the possession of the Receiving Party at the time of the disclosure or was independently developed by the Receiving Party, as reflected by the Receiving Party’s internal, written and dated documentation; or (d) an applicable regulation, court order or other legal process requires the disclosure of such information, provided that prior to such disclosure the Disclosing Party will give notice to the other Party so that the other Party may take reasonable steps to oppose or limit such disclosure, so that the Disclosing Party does not disclose any more information than necessary to comply with such legal process. The burden of proof that Confidential Information falls into any one of the above exemptions will be borne by the Party claiming such exemption with documentation or other credible evidence.
1.7 “Control” as used with respect to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities, by agreement or otherwise.
1.8 “Evolent Clients” means entities under a current contract with Evolent for an implementation and/or long-term services contract. 1.9 “Evolent Top Prospects” means, as of any date, up to twenty (20) potential Evolent customers in the Evolent sales pipeline identified by Evolent that are not Evolent Clients as of such date, and (a) are engaged in active discussions with Evolent regarding purchasing Evolent products and services and/or (b) are under a current contract with Evolent for Blueprint Services or other services that do not constitute implementation or long-term services; provided, however, that (i) the list of such potential Evolent customers may be updated by Evolent on a quarterly basis, and ABCO shall have the opportunity upon receipt of each such quarterly update to notify Evolent if any of the Persons added to such list are in an Active Sales Process with ABCO and shall therefore be removed from such list, and (ii) no Person shall remain on the list of Evolent Top Prospects for more than (x) twelve (12) consecutive months, in the case of potential Evolent customers without a signed agreement with Evolent, or (y) twenty-four (24) consecutive months, in the case of potential Evolent Clients that signed an agreement for Blueprint Services with Evolent before or within twelve (12) months of being added to the list of Evolent Top Prospects.
1.10 “Exclusive TPA Services” means certain services as set forth on Schedule 1 of the UPMC Reseller Agreement (as in effect on the Effective Date), to the extent that UPMC Health Plan, Inc., a Pennsylvania nonprofit corporation (“UPMC”), has the exclusive right to provide such services to Evolent, for resale by Evolent to its customers.
1.11 “Disclosing Party” means a Party that provides Confidential Information to the other Party, or the other Party’s Affiliates.
1.12 “Governmental Authority” means any federal, state, municipal, local, territorial, or other governmental department, regulatory authority, judicial or administrative body, whether domestic, foreign or international.
1.13 “Law” means all international, federal, country, state, provincial, local and other laws, rules and regulations, declaration, decree, directive, legislative enactment, order, code, ordinance, regulation, rule or other binding restriction of or by any Governmental Authority, as the same are promulgated, supplemented or amended from time to time.
1.14 “Loss” individually, and collectively, “Losses” means all claims, liabilities, obligations, losses, costs, expenses (including, without limitation, legal, accounting and similar expenses), litigation, proceedings, fines, taxes, levies, imposts, duties, deficiencies, assessments, charges, penalties, allegations, demands, damages (including, but not limited to, actual, punitive or consequential, foreseen or unforeseen, known or unknown, fixed or contingent, and matured or unmatured), civil and criminal violations of Law, settlements and judgments of any kind or nature whatsoever.
1.15 “Person” means any individual, corporation, partnership, firm, joint venture, association, limited liability company, limited liability partnership, joint-stock company, trust, joint venture, unincorporated organization, governmental, judicial or regulatory body, business unit, division or any other business entity, organization or Governmental Authority.
1.16 “Receiving Party” means a Party that receives Confidential Information from the other Party or the other Party’s Affiliates.
1.17 “Statement of Work” or “SOW” means an agreement by and between ABCO and Evolent that contains the detailed description of services, scope, specifications, pricing, implementation plan, timetables, milestones, and other terms and conditions for each procurement of services, as applicable.
1.18 “UPMC Reseller Agreement” means that certain Second Amended and Restated Reseller, Services and Non-Competition Agreement between UPMC and Evolent dated as of [the Effective Date].
2. SERVICES TO BE PROVIDED BY ABCO.
2.1 General Services:
2.1.1 Minimum Purchase. The Parties hereby acknowledge and agree that Evolent has purchased from ABCO a minimum of Two Hundred Thousand Dollars ($200,000) of services (as described in Section 2.2.1) (the “Original Minimum Purchase”) for delivery between the Original Effective Date and the first anniversary thereof.
2.1.2 Statements of Work. The specific description, price, service levels (if applicable) and other project, service, and/or customer-specific terms for a particular service that may be provided by ABCO to Evolent (each, a “Service”, and collectively, the “Services”) shall be set forth in a Statement of Work that will be created on a project by project basis.
2.2 Right of First Offer and Process for Invoking:
2.2.1 Applicable Services. Throughout the Term, ABCO shall have the right of first offer to provide the following services to Evolent and Evolent’s customers:
(a) Physician practice management consulting and other physician practice management services;
(b) Physician incentive design services;
(c) Medical home development consulting services; and
(d) Performance analytics shared with physicians with the intent to improve outcomes.
2.2.2 Process for Exercising Right of First Offer. Evolent shall notify ABCO in writing in the event Evolent desires to receive any of the above services (“First Offer Services”). ABCO shall have a period of thirty (30) days (“First Offer Services Evaluation Period”) within which to conduct its evaluation and diligence with respect to providing such First Offer Services. Evolent shall cooperate with ABCO and provide reasonable assistance and information to ABCO to enable ABCO to conduct its evaluation. Within five (5) business days after the expiration of such First Offer Services Evaluation Period, ABCO shall notify Evolent in writing whether or not it wishes to provide such services to Evolent. If ABCO elects to provide such First Offer Services, Evolent agrees to engage in good faith negotiations with ABCO, on an exclusive basis for a period of sixty (60) days, regarding the specific terms covering such First Offer Services.
2.3 Failure to Execute a Service Agreement for the VBC Innovation Center: The Parties acknowledge and agree that it was their intent as of the Original Effective Date to enter into a service agreement under which Evolent would engage ABCO to provide certain consulting, development and support services in connection with the creation, launch, implementation and ongoing support of a Value-Based Care Innovation Center (the “VBC Innovation Center”), in consideration for which Evolent would pay ABCO a fixed fee of Eight Hundred Thousand Dollars ($800,000) per year (“Fixed Fee”) for each of the first two (2) years of the term of such VBC Innovation Center service agreement. The Parties acknowledge and agree that, notwithstanding the fact that they negotiated with diligence and in good faith the specific terms and conditions of such service agreement, the Parties were unable to reach an agreement with respect to the VBC Innovation Center. Accordingly, the Original Minimum Purchase is increased to One Million Two Hundred Thousand Dollars ($1,200,000) (the “Minimum Purchase”) as follows: (a) between the Original Effective Date and the second anniversary thereof, Evolent shall have purchased from ABCO a minimum of Seven Hundred Thousand Dollars ($700,000) of services for delivery on or prior to such second anniversary of the Original Effective Date), and (b) inclusive of the purchases described in clause (a), between the Original Effective Date and the third anniversary thereof, Evolent shall have purchased from ABCO a minimum of One Million Two Hundred Thousand Dollars ($1,200,000) of services for delivery on or prior to such third anniversary of the Original Effective Date); provided that, for purposes of this sentence, “services” shall include consulting, software, professional or analytic services provided from time to time by ABCO to Evolent (other than services in connection with the provision of any office space by or on behalf of ABCO to Evolent) or, pursuant to a joint written proposal by ABCO and Evolent, to any Evolent Client.
2.4 Reservation of Rights: For the avoidance of doubt, Evolent is not precluded from offering and providing services directly to its customers, subject (a) to (i.e., after ABCO has had the full opportunity to exercise) ABCO’s right of first offer to provide any First Offer Services in accordance with Section 2.2) and (b) to Evolent’s compliance with its non-competition obligations as set forth in Section 6.2.
2.5 Designation of Relationship Managers: In order to support the launch and ongoing success of the exclusive reseller relationship between ABCO and Evolent, each Party agrees to designate a senior level individual who will serve as the primary liaison and “go to” contact and relationship manager for such Party (each, a “Relationship Manager”). Each Party’s Relationship Manager’s role and responsibilities would include: (a) facilitating day-to-day communications between the Parties regarding customer-facing activities, such as marketing, promotional and sales activities and preparing and submitting bids, proposals, responses to requests for proposals, fee estimates, Statements of Work and project plans; (b) receiving and submitting requests between the Parties for information and/or assistance; (c) overseeing the efficient knowledge transfer and flow of information between the Parties; (d) facilitating communications between the appropriate individuals within Evolent and ABCO, with respect to product and service offering development; and (e) providing the first level of performance review or escalation in the event of a Dispute as provided in Section 13. The Relationship Managers will meet regularly, but no less frequently than monthly, as reasonably necessary, to maintain a good working relationship between the Parties. Each Party may change its Relationship Manager by giving the other Party reasonable notice as long as the change is implemented in a manner that does not cause any significant disruption to each Party’s business operations and business relationship.
3. FEES; PAYMENT TERMS; SHORTFALL.
3.1 Fees; Timing of Payments: Evolent shall pay ABCO the applicable fees for the Services performed by ABCO pursuant to a Statement of Work, as follows: (a) unless the Parties otherwise agree in writing, a deposit of 50% of the total fees for the particular project shall be paid upon signing of the Statement of Work; (b) ABCO will submit an invoice to Evolent for the balance upon completion of the work; and (c) Evolent shall pay ABCO for such invoiced amount within thirty (30) days after receipt of such invoice.
3.2 Minimum Purchase and Shortfall: Evolent agrees to pay ABCO the Minimum Purchase. If the aggregate amount of Services actually procured by Evolent from ABCO is not equal to or greater than (a) Seven Hundred Thousand Dollars ($700,000) of services for delivery on or prior to the second anniversary of the Original Effective Date or (b) inclusive of the purchase described in clause (a), the Minimum Purchase of services for delivery on or prior to the third anniversary of the Original Effective Date, Evolent shall pay ABCO the amount of the shortfall (i.e., the difference between Seven Hundred Thousand Dollars ($700,000) or the Minimum Purchase amount, as applicable, less the sum of: (a) the aggregate fees for the actual amount of Services procured; and (b) any Credits (as provided in the next sentence) (the “Shortfall”), if any, on or before August 31, 2013 or August 31, 2014, as applicable. In the event that ABCO refuses or fails, without reasonable cause, to provide any of the Services requested by Evolent (provided the scope of the Services requested is within the scope customarily provided by ABCO), the fees that would otherwise have been applicable had ABCO agreed to provide such Services would count as a “Credit”. As of the date hereof, no such Credits have accrued.
4. TERM AND RENEWAL. The initial term of this Agreement shall commence on the Effective Date and unless sooner terminated in accordance with the terms hereof, shall continue until August 31, 2016 (“Initial Term”). Thereafter, this Agreement shall automatically be renewed for another five-year term (“Renewal Term”) unless either Party elects to terminate this Agreement by providing the other Party with written notice of termination one hundred eighty (180) days prior to the expiration of the current term. (“Initial Term” and “Renewal Term” collectively, the “Term”).
5. REFERRAL FEES, SOLICITATION AND COMPETITION AND POST-CLOSING SERVICES.
5.1 Referral Fees:
5.1.1 During the Term, ABCO will pay Evolent a sales referral fee for any sale made by ABCO that resulted from a “net” new sale from a new customer that was not already in ABCO’s sales pipeline (i.e., a “warm lead”) or a then-current customer of ABCO generated directly by Evolent’s efforts and without any assistance from any ABCO employee or representative (including any Evolent employee that serves on the Board of Directors of ABCO), equal to 5% of the total ABCO revenue from the new customer during the initial twelve (12) months of services under the services agreement with such new customer.
5.1.2 During the Term, Evolent will pay ABCO a sales referral fee for any sale made by Evolent that resulted from a “net” new sale from a new customer that was not already in Evolent’s sales pipeline (i.e., a “warm lead”) or a then-current customer of Evolent generated directly by ABCO’s efforts and without any assistance from any Evolent employee or representative (including any ABCO employee that serves on the Board of Directors of Evolent), in accordance with the following terms:
(a) ABCO will receive a one-time referral fee for any “employee health” diagnostic, consulting or broker services provided by Evolent to a Covered Health System, equal to the lesser of $20,000 or 5% of the total Evolent revenue from the Covered Health System during the initial twelve (12) months of services under the service agreement with such Covered Health System.
(b) ABCO will receive $50,000 per year for three (3) years for each health system joining Evolent as an Employee Health Platform Customer. An “Employee Health Platform Customer” is defined as a health system purchasing diagnostic/consulting services and ongoing medical management/health plan services (i.e., care management, HealthPlaNet care management application, and the TPA platform, etc.).
(c) ABCO will receive $100,000 per year for three (3) years for a health system joining Evolent as a Platform Health Plan Customer. A “Platform Health Plan Customer” is defined as a health system purchasing ongoing medical management services, ongoing health plan outsourcing services (i.e., TPA) and health plan management services for purposes of a licensed insurance entity with at least fifty thousand (50,000) lives (beyond the employee population).
(d) With the exception of making the introduction (either through an email or an in-person meeting) (to generate the “warm lead”), ABCO would not be expected to perform any actual duties or incur actual cost to receive a referral fee.
(e) The annual referral fees for each referral would be capped at the lesser of (x) 5% of annual revenue generated by Evolent for the respective customer and (y) the $50,000 or $100,000 figures described above, as applicable.
6. SOLICITATION AND COMPETITION.
6.1 Scope:
6.1.1 Throughout the Term, ABCO agrees not to offer any ABCO Restricted Products and Services to (a) any Evolent Clients or (b) any Evolent Top Prospects; provided, however, that ABCO shall not be restricted from making any such offer to any Evolent Top Prospect or Evolent Client with whom ABCO was, at the time such Person was identified as an Evolent Top Prospect or became an Evolent Client, engaged in an Active Sales Process. The foregoing restrictions shall not apply in the event of a Change of Control of Evolent or in the event that ABCO ceases to be a shareholder of Evolent.
6.1.2 None of the foregoing would prohibit ABCO from:
(a) Marketing, offering, licensing or selling versions of any of its Crimson Population Risk Management products, or the successors to any such products, provided that such products, or the successors to any such products, are not the same as or substantially similar to (i.e., includes functionality that is redundant in substantial and material respects with) HealthPlaNet as it exists as of the Effective Date.
(b) Supporting employers with care management related best practices and research.
(c) Offering traditional “dedicated advisor” support in conjunction with ABCO’s traditional business intelligence offerings.
(d) Marketing, offering, licensing or selling its employer health product.
(e) Providing physician management consulting and other physician management services.
6.2 Restrictions Relating to Certain ABCO Products and Services: Evolent shall not, until the earlier of (x) ABCO’s ceasing to be a shareholder of Evolent or (y) the seventh (7 ) anniversary of the date of this Agreement, promote, market, provide, offer or sellth (a) unbundled software applications, software tools or other similar technologies (including, without limitation, software as a service, analytics technology or data services) (each, a “Technology Solution”), (b) consulting services that are not intended to lead to or be a part of a Blueprint Services engagement, implementation contract and/or long-term services contract, or (c) any best practices membership programs or unbundled or bundled physician practice management and other physician practice management consulting services, in each case referred to in this clause (c) that are substantially similar to, or that are competitive with, ABCO’s best practices membership programs or physician practice management or other physician practice management consulting services that are offered by ABCO as of the date first written above. For the avoidance of doubt, “unbundled” means on a stand-alone basis, instead of “bundled”, which contemplates that the Technology Solution is both (i) offered as part of a “packaged”, integrated offering, in conjunction with other Evolent products or services that are not Technology Solutions (and not only services that constitute customary software, data and end user support-related services), such as the Exclusive TPA Services, and (ii) incidental to the provision of such other Evolent products or services. Notwithstanding any other provision hereof, the foregoing restrictions in this Section 6.2 shall survive a Change of Control of Evolent for seven (7) years from the date of this Agreement; provided, however, that prior to the seventh (7 ) anniversary of the date of thisth Agreement, the acquiring party in a Change of Control of Evolent shall be not be subject to the foregoing restrictions with respect to any Technology Solutions or consulting services, in each case, that are unrelated to the Evolent assets acquired.
6.3 Non-Solicitation or Hiring: During the Term and for a period of eighteen (18) months thereafter, Evolent shall not solicit or hire any of ABCO’s employees without ABCO’s prior written consent.
7. EXCLUSIVE RESELLER RIGHTS FOR FUTURE PRODUCTS.
In the event that Evolent creates a discrete or segregable product or service that can be sold to healthcare providers, Evolent shall notify ABCO in writing of such new offerings (“New Products”). ABCO shall have a period of ninety (90) days (“New Products Evaluation Period”) within which to conduct its evaluation and diligence with respect to providing such New Products. Evolent shall cooperate with ABCO and provide reasonable assistance and information to ABCO to enable ABCO to conduct its evaluation. Within five (5) business days after the expiration of such New Products Evaluation Period, ABCO shall notify Evolent in writing whether or not it wishes to have the right to resell such New Products. If ABCO elects to resell such New Products, Evolent and ABCO agree to negotiate in good faith on an exclusive basis for one hundred twenty (120) days the terms of a reseller agreement, under which ABCO would be the exclusive distributor (in addition to Evolent) of such New Products.
8. CONFIDENTIALITY.
8.1 Confidential Information: ABCO acknowledges that in connection with its rights and obligations under this Agreement it may gain access to the Confidential Information of Evolent and its customers and Affiliates. Evolent acknowledges that in connection with its rights and obligations under this Agreement, it may gain access to the Confidential Information of ABCO and its customers and Affiliates.
8.2 Non-Disclosure: The Receiving Party may disclose the Disclosing Party’s Confidential Information strictly on a need-to-know basis to only those personnel, including employees of the Receiving Party’s contractors, who require access to the Disclosing Party’s Confidential Information in order to perform or derive benefit from the Services or otherwise meet its obligations under this Agreement. The Receiving Party agrees: (a) to hold the Disclosing Party’s Confidential Information in strict confidence, using the same degree (but no less than a reasonable degree) of care and protection that it exercises with its own Confidential Information of a similar nature; (b) not to directly or indirectly disclose or otherwise make available any Confidential Information of the Disclosing Party to a third party; and (c) not to copy or use the Disclosing Party’s Confidential Information for any purpose other than as necessary to fulfill the Receiving Party’s obligations or exercise its rights under this Agreement. Each Receiving Party is responsible for ensuring that its employees, agents and contractors strictly abide by the requirements of confidentiality and restrictions on use as provided in this Section 8.2 and shall be liable to the Disclosing Party for any acts or omissions of its employees, agents and independent contractors relating to the Disclosing Party’s Confidential Information. The Receiving Party is allowed to disclose Confidential Information of the Disclosing Party to the extent required by Law or by the order or a court of similar judicial or administrative body with jurisdiction, provided that the Receiving Party notifies the Disclosing Party of such required disclosure promptly and in writing and cooperates with the Disclosing Party, at the Disclosing Party’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure. The provisions of this Section 8 shall survive beyond the expiration or termination of this Agreement.
8.3 Injunctive Relief: The Parties acknowledge and agree that monetary damages may be inadequate to compensate for a breach of the provisions contained in this Section 8 or other confidentiality provisions of this Agreement. In the event of such breach, the injured Party shall be entitled to seek injunctive relief (without the need to post bond) and any and all other remedies available at Law or in equity. This Section 8.3 in no way limits the liability or damages that may be assessed against a Party in the event of a breach by the other Party of any of the provisions of this Section 8.
8.4 Residuals: Notwithstanding anything in this Section 8 to the contrary, subject to any applicable statutory intellectual property rights applicable to patents, trademarks or copyrights, either Party may use “Residuals” for any purpose, including without limitation, for use in development, manufacture, promotion, sale and maintenance of its products and services; provided, however, that this right to Residuals does not represent a license under any patents, copyrights or trademarks of the Disclosing Party. The term “Residuals” means any information that is retained in the unaided memories of the Receiving Party’s employees who have had access to the Disclosing Party’s Confidential Information pursuant to the terms of this Agreement.
9. WARRANTIES.
9.1 Authority/No Conflict: ABCO represents and warrants that (a) it has the power and authority to enter into and perform its obligations under this Agreement without conflict with, default under, or violation of any Law, regulation, or agreement binding upon it, and (b) this Agreement has been duly authorized by all necessary organizational action, and duly and validly executed and delivered by it, and constitutes its legally valid and binding obligation, enforceable in accordance with its terms.
9.2 Services: ABCO represents, warrants and covenants that the Services provided under this Agreement will be performed in a professional and workmanlike manner.
9.3 Compliance with Laws/Approvals: Each of ABCO and Evolent shall comply in all material respects with all Laws and regulations applicable to ABCO or Evolent, as applicable, in performing its obligations under this Agreement. To the extent applicable, ABCO shall be responsible for obtaining all necessary permits, licenses, and consents, including governmental approvals, required of ABCO and its contractors in connection with the performance of its obligations under this Agreement, and Evolent shall be responsible for obtaining all necessary permits, licenses, and consents, including governmental approvals, required of Evolent and its contractors in connection with the performance of its obligations under this Agreement.
9.4 Limitations of Warranty: EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, ABCO MAKES NO OTHER WARRANTY OR REPRESENTATION, ORAL, WRITTEN, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE SERVICES, INCLUDING WITHOUT LIMITATION, THEIR QUALITY, PERFORMANCE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, UNINTERRUPTED OR ERROR-FREE OPERATION OR OTHERWISE HEREUNDER. The disclaimer of warranties and limitations set forth in this Agreement constitute an essential part of this Agreement.
10. INDEMNIFICATION.
10.1 IP Indemnification: ABCO shall defend, indemnify and hold harmless Evolent and its Affiliates (other than ABCO), customers, and their respective officers, directors and employees from and against any Losses resulting from a claim that the Services provided by ABCO under this Agreement infringes or misappropriates a third party’s intellectual property rights. ABCO shall also use commercially reasonable efforts to modify the allegedly infringing Services to make it non-infringing, procure a license from the third party claiming infringement to permit Evolent to continue to use the Services, or provide Evolent with functionally equivalent and non-infringing Services. THIS SECTION 10.1 SETS FORTH ABCO’S SOLE AND EXCLUSIVE LIABILITY, AND EVOLENT’S SOLE AND EXCLUSIVE REMEDY, FOR ALLEGATIONS OR CLAIMS OF INFRINGEMENT OF THIRD PARTY RIGHTS OF ANY KIND ASSERTED AGAINST EVOLENT, ITS AFFILIATES (OTHER THAN ABCO), CUSTOMERS AND THEIR RESPECTIVE OFFICERS, DIRECTORS AND EMPLOYEES. ABCO shall not be obligated to indemnify Evolent, its Affiliates, customers, and their respective officers, directors and employees for infringement or misappropriation claims to the extent such claims arise out of use by Evolent or its customers of any of the Services in a manner other than as contemplated by the Parties under this Agreement.
10.2 ABCO’s Indemnification: ABCO hereby agrees to indemnify, defend, and hold Evolent and its Affiliates (other than ABCO), and all of their respective directors, officers, members, managers, partners, employees, agents, successors and assigns, harmless from and against any Losses arising from or related to: (a) the material breach of this Agreement, including any or all SOWs, by ABCO or its personnel (including contractors); (b) breach of any of ABCO’s representations, warranties, and covenants in this Agreement; or (c) negligence or willful misconduct by ABCO or its personnel (including contractors).
10.3 Evolent’s Indemnification: Evolent hereby agrees to indemnify, defend, and hold ABCO and its Affiliates (other than Evolent), and all of their respective directors, officers, members, managers, partners, employees, agents, successors and assigns, harmless from and against any Losses arising from or related to: (a) the material breach of this Agreement, including any or all SOWS, by Evolent or its personnel (including contractors); (b) breach of any of Evolent’s representations, warranties and covenants in this Agreement; or (c) negligence or willful misconduct by Evolent or its personnel (including contractors).
10.4 Indemnification Procedure:
10.4.1 Notice of Claim. Any Party seeking indemnification hereunder (the “Indemnitee”) shall notify the Party liable for such indemnification (the “Indemnitor”) in writing of any event, omission or occurrence that the Indemnitee has determined has given or could give rise to Losses that are indemnifiable hereunder (such written notice being hereinafter referred to as a “Notice of Claims”). Such Notice of Claims shall be given promptly after the Indemnitee becomes aware of its own claim or that of a third party; provided that the failure of any Indemnitee to give notice as provided in this Section 10.4.1 shall not relieve the Indemnitor of its obligations under this Section 10. A Notice of Claims shall specify in reasonable detail the nature and any particulars of the event, omission, or occurrence giving rise to a right of indemnification. The Indemnitor shall satisfy its obligations hereunder, as the case may be, within thirty (30) days of its receipt of a Notice of Claims.
10.4.2 Process. With respect to any third party claim, demand, suit, action, or proceeding that is the subject of a Notice of Claim, the Indemnitor shall, in good faith and at its own expense, defend, contest, or otherwise protect against any such claim, demand, suit, action, or proceeding with legal counsel of its own selection (and reasonably acceptable to the Indemnitee). The Indemnitee shall have the right, but not the obligation, to participate, at its own expense, in the defense thereof through counsel of its own choice and shall have the right, but not the obligation, to assert any and all cross claims or counterclaims it may have. So long as the Indemnitor is defending in good faith any such third party claim, demand, suit, action or proceeding, the Indemnitee shall at all times cooperate, at its own expense, in all reasonable ways with, make its relevant files and records available for inspection and copying by, and make its employees available or otherwise render reasonable assistance to, the Indemnitor. In the event that the Indemnitor fails to timely defend, contest or otherwise protect against any such third party claim, demand, suit, action, or proceeding, the Indemnitee shall have the right, but not the obligation, to defend, contest, assert cross claims or counterclaims, or otherwise protect against, the same and may make any compromise or settlement thereof and be entitled to all amounts paid as a result of such third party claim, demand, suit, or action or any compromise or settlement thereof. The Indemnitor will not consent to the entry of any judgment or enter into any settlement with respect to any such third party claim, demand, suit, action or proceeding without the prior written consent of the Indemnitee, which will not be unreasonably withheld, and provided that no settlement shall require the Indemnitee to admit liability, or perform or become subject to additional obligations thereunder.
11. LIMITS OF LIABILITY. EXCEPT WITH RESPECT TO OR BREACH BY EITHER PARTY OF THE OTHER PARTY’S CONFIDENTIAL INFORMATION UNDER SECTION 8,
NEITHER EVOLENT NOR ABCO SHALL BE LIABLE FOR, NOR WILL THE MEASURE OF DAMAGES INCLUDE, ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OR AMOUNTS INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF INCOME, PROFITS, OR SAVINGS, LOSS OF DATA, OR COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES, ARISING OUT OF OR RELATING TO ITS PERFORMANCE UNDER THIS AGREEMENT UNDER ANY CAUSE OF ACTION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL EITHER PARTY’S LIABILITY EXCEED THE AMOUNT OF REVENUE ACTUALLY RECEIVED BY ABCO IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO THE CLAIM.
12. TERMINATION.
12.1 Termination for Cause: Either Party shall have the right to terminate this Agreement in the event the other Party materially violates a material provision of this Agreement and such violation is not cured or cannot be cured within thirty (30) days after written notice of such material violation.
12.2 Survival: The rights and obligations contained in Sections 1, 5 (with respect to Evolent’s payment obligations that may extend beyond the Term), 6.2, 6.3, 8, 9.4, 10, 11, 12.2, 13 and 14 shall survive any termination or expiration of this Agreement.
13. ESCALATION; DISPUTE RESOLUTION. Subject to the terms of Section 13.5, the procedures of this Section 13 will control the resolution of any and all disputes between the Parties including, without limitation, any dispute relating to disputed monies owing or breach of warranty (each, a “Dispute”). The Parties will seek to resolve each Dispute as follows:
13.1 First Level Performance Review: Each Party’s Relationship Manager will meet as often as will reasonably be required by either Party to review the performance of either Party under this Agreement and to resolve the Dispute. If these representatives are unable to resolve the Dispute within ten (10) business days after the initial request for a meeting, then the Parties will submit the Dispute to an executive level performance review as provided in Section 13.2 below.
13.2 Executive Level Performance Review: Face-to-face negotiations will be conducted by a senior executive officer of each Party (or such other executive as a Party may designate). If these representatives are unable to resolve the Dispute within five (5) business days after the Parties have commenced negotiations or ten (10) business days have passed since the initial request for a meeting at this level, then the Parties may jointly engage the services of a third-party mediator.
13.3 Arbitration: If the Parties are unable to resolve the Dispute through the alternative mechanisms described above, the Parties shall submit the Dispute for resolution through binding arbitration, except as otherwise provided in Section 13.5. The Parties agree and consent to such arbitration proceeding taking place in Wilmington, Delaware, and in accordance with the Commercial Arbitration Rules of the American Arbitration Association, except that discovery may be had in accordance with the Federal Rules of Civil Procedure. The Parties shall be permitted at least six (6) months from the date of the filing of the Arbitration Demand to conduct discovery. The arbitration proceedings shall be conducted by a panel of three (3) impartial arbitrators, with each Party selecting one (1) of the impartial arbitrators and those two (2) arbitrators then selecting the third impartial arbitrator, all such selections to be made through the procedures of the American Arbitration Association. At least one (1) arbitrator must be an attorney licensed under the Laws of Pennsylvania and at least one (1) arbitrator (may be the same Person as the Pennsylvania attorney) must have direct and substantial experience in the industry pertinent to the subject matter of the Dispute. Judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof; provided, however, in rendering its decision, the arbitrators shall be bound by the Laws of the Commonwealth of Pennsylvania (without regard to its conflicts of laws provisions) and by the terms and conditions of this Agreement setting forth the rights and responsibilities of the Parties. The decision of the arbitration panel shall be accompanied by a written opinion setting forth the factual and legal bases for the award. The arbitrators shall issue such written decision within thirty (30) days of the conclusion of the arbitration hearing. The arbitrators appointed hereunder shall not have the power to award punitive damages. Service of a petition to confirm the arbitration award may be made by United States mail, postage prepaid, or by any regularly conducted commercial express mail service, to the attorney for the Party or, if not so represented, to the Party at the address set forth herein, or to the Party’s last known business address. The prevailing Party in any action related to or arising under this Agreement shall be entitled to reasonable attorneys’ fees and costs.
13.3.1 For any Dispute in which the amount in controversy is at least One Million Dollars ($1,000,000), the following additional procedures apply:
(a) a certified court reporter shall transcribe the arbitration hearings; The Parties initially split the cost of the reporter, but such costs shall ultimately be awarded to the Party prevailing in the arbitration proceeding; and
(b) either Party may take an appeal from the final decision by making a written demand within twenty (20) days of the award.
13.3.2 Any such appeal shall be conducted as follows:
(a) such appeals are limited to issues of Law (i.e., the original award (1) contains material errors of Law such that the original award is not founded on any appropriate legal basis; (2) is based on factual findings clearly unsupported by the record; or (3) is subject to one or more grounds set forth in Section 10 of the Federal Arbitration Act or 42 Pa. C.S.A. §7341 for vacating an award);
(b) the Person hearing the appeal shall be a former federal judge mutually agreed to by the Parties or selected through the procedures of the American Arbitration Association. The former judge shall act as the appellate arbitrator;
(c) the submissions on appeal are limited to (1) the record of the arbitration, (2) a 30-page brief by the appellant, (3) a 30-page brief by the appellee and (4) a 10-page response by the appellant. The appellate arbitrator will set the dates for submission of the briefs. Oral argument may be heard at the discretion of the appellate arbitrator;
(d) the appellate arbitrator shall render a written decision within sixty (60) days of the final submission;
(e) during the pendency of the arbitration appeal, the Parties agree to suspend any running of the time to seek enforcement of the original award. The Parties also agree to waive any appeal to state or federal courts based on the grounds set forth in Section 10 of the Federal Arbitration Act for vacating an award and 42 Pa. C.S.A. § 7341;
(f) the appellate arbitrator must award costs and attorneys’ fees to the prevailing Party; and
(g) the decision of the appellate arbitrator shall be final.
13.4 Continued Performance: Each Party acknowledges that the timely and complete performance of its obligations pursuant to this Agreement is critical to the business and operations of the other Party. Accordingly, in the event of a Dispute, each Party shall continue to so perform all of its obligations under this Agreement, in good faith during the resolution of such Dispute unless and until (a) authority to stop doing so is granted or conferred by a court of competent jurisdiction or (b) this Agreement is terminated in accordance with the provisions hereof.
13.5 Equitable Relief: Notwithstanding anything contained in this Agreement to the contrary, the Parties will be entitled to seek injunctive relief, specific performance or other equitable relief whenever the facts or circumstances would permit a Party to seek equitable relief in a court of competent jurisdiction. Without limiting the generality of the foregoing, (a) Evolent agrees that there would be irreparable harm to ABCO in the event of any such breach by Evolent of Section 6.2 and ABCO shall be entitled to (i) injunctive relief to prevent breaches of Section 6.2, (ii) specific performance of this Agreement, and (iii) any other remedies provided by Law or equity, including without limitation an award for damages, and (b) ABCO agrees that there would be irreparable harm to Evolent in the event of any such breach by ABCO of Section 6.1.1, and Evolent shall be entitled to (i) injunctive relief to prevent breaches of Section 6.1.1, (ii) specific performance of this Agreement, and (iii) any other remedies provided by Law or equity, including without limitation an award for damages.
14. MISCELLANEOUS PROVISIONS.
14.1 Good Faith and Mutual Agreement: Unless otherwise expressly stated in such provision, if a provision in this Agreement calls for the consent of a Party or the mutual agreement of the Parties, the Parties agree that each will act in good faith, will not unreasonably withhold their consent and that deference shall be given to the other Party’s reasonable business requirements, and the requirements of the Parties’ respective regulators and internal controls procedures.
14.2 Independent Contractor: The relationship of ABCO to Evolent shall at all times be that of an independent contractor. Nothing in this Agreement shall be construed to create any partnership, association, joint venture, or employment between the Parties. Each Party shall have the sole and exclusive control over the labor and employee relations policies and policies relating to wages, hours, working conditions, benefits, or other conditions of its personnel and shall be responsible and liable for the acts and omissions of its employees, agents and contractors.
14.3 Assignability: Evolent has entered into this Agreement because of the expertise of ABCO, and ABCO understands that the obligations of ABCO are personal to ABCO and may not be assigned to any other company, partnership or individual without the express written consent of Evolent; provided, however, that no consent shall be required if an assignment is made in connection with a sale of all or substantially all of ABCO’s assets or stock, or in connection with a merger or Change of Control. Evolent may assign this Agreement (including the licenses granted pursuant to this Agreement) to any Affiliate of Evolent as part of an internal reorganization or in connection with a sale of substantially all of its assets or stock, or in connection with a merger or Change of Control.
14.4 Governing Law and Jurisdiction: This Agreement shall be governed by and construed and enforced in accordance with the Laws of the Commonwealth of Pennsylvania, without regard to that state or any other state’s conflicts of law rules. Each Party irrevocably consents to the personal jurisdiction of the state and federal courts located in Wilmington, Delaware for any suit or action arising from or related to this Agreement.
14.5 Force Majeure: Neither Party shall be deemed in default of this Agreement to the extent that performance of their obligations or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, act of government, or any other cause beyond the control of such Party, provided that such Party gives the other Party written notice thereof promptly and, in any event, within fifteen (15) days of discovery thereof, and uses its commercially reasonable efforts to cure any such breach.
14.6 Entire Agreement: This Agreement and its exhibits, schedules, and attachments constitute the entire understanding between the Parties with respect to the subject matter hereof and supersede all prior written or oral representations with respect to the subject matter hereof. This Agreement may not be modified, amended, or otherwise changed in any manner except by a written instrument executed by the Party against whom enforcement is sought.
14.7 Cumulative Remedies: Except as expressly provided in this Agreement, (a) remedies for breach are cumulative and may be exercised separately or concurrently, (b) the exercise of one remedy is not an election of that remedy to the exclusion of others, and (c) the provision for any remedy in this Agreement shall not affect remedies otherwise available at Law or in equity.
14.8 No Third Party Beneficiaries: The Parties do not intend that this Agreement creates any right or cause of action in or on behalf of any Person other than Evolent and ABCO.
14.9 Headings: Section headings have been included in this Agreement merely for convenience of reference. They are not to be considered part of, or to be used in interpreting this Agreement.
14.10 Binding Effect: The covenants and conditions contained herein will apply to and bind the successors, representatives, and permitted assigns of the Parties.
14.11 Expenses: Each Party shall be responsible for its own legal, accounting and other transaction costs relating to the transactions contemplated in this Agreement.
14.12 Notices: All notices required to be given hereunder shall be in writing and given hereunder, as elected by the Party giving notice, as follows: (a) by personal delivery, (b) sent by overnight courier with confirmation of receipt, or (c) dispatched by certified or registered mail, return receipt requested, postage prepaid, addressed to the Parties as follows.
If to Evolent: Evolent, Inc.
800 N. Glebe Road, Suite 500
Arlington, VA 22203
Attention: President
Morgan Lewis & Bockius, LLP
225 Franklin Street
Boston, MA 02110
Attention: Mark B. Stein, Esq.
Fax No.: (617) 341-7701
If to ABCO: The Advisory Board Company
2445 M St. NW
Washington, DC 20037
Attention: General Counsel
Notice shall be deemed given (a) on the date of receipt if delivered personally; (b) on the business day following delivery of such notice to the overnight courier; or (c) three (3) business days after deposit in the mail in accordance with the foregoing. Either Party may change the address to which to send notices by notifying the other Party of such change of address in writing in accordance with the foregoing.
14.13 Press Releases: No press releases or other public announcements concerning the transactions contemplated by this Agreement shall be made by ABCO or Evolent without the prior written consent of both Parties; provided, however, that nothing herein shall prevent a Party from supplying such information or making statements as required by governmental authority or in order for a Party to satisfy its legal obligations (prompt notice of which shall in any such case be given to the other Party).
14.14 Severability: Any terms or provisions of this Agreement that shall prove to be invalid, void or illegal shall in no way affect, impair, or invalidate any other term or provision herein and such remaining terms and provisions shall remain in full force and effect provided that its general purposes are still reasonably capable of being effected. All such terms or provisions which are determined by a court of competent jurisdiction or other dispute resolution proceeding to be invalid, void or illegal shall be construed and limited so as to allow the maximum effect permissible by Law.
14.15 Waiver: The waiver by either Party to this Agreement of any one or more defaults, if any, on the part of the other, shall not be construed to operate as a waiver of any other or future defaults under the same or different terms, conditions or covenants contained in this Agreement.
IN WITNESS WHEREOF, the Parties have executed this Agreement effective as of the date first written above.
THE ADVISORY BOARD COMPANY EVOLENT HEALTH, INC.
/s/ Evan Farber
By: Evan Farber By:
Its: General Counsel Its:
[Signature Page to Amended and Restated Services, Reseller and Non-Competition Agreement]
IN WITNESS WHEREOF, the Parties have executed this Agreement effective as of the date first written above.
THE ADVISORY BOARD COMPANY EVOLENT HEALTH, INC.
/s/ Frank Williams
By: By: Frank Williams
Its: Its: CEO
| Entailment |
622_nda-13 | 622_nda-13_0 | Q: Receiving Party may acquire information similar to Confidential Information from a third party.
Text: Exhibit 10.16
AMENDED AND RESTATED
SERVICES, RESELLER AND NON-COMPETITION AGREEMENT
THIS AMENDED AND RESTATED SERVICES, RESELLER AND NON-COMPETITION AGREEMENT (this “Agreement”) is made and entered into effective as of June 27, 2013 (the “Effective Date”) by and between The Advisory Board Company, a Delaware corporation (“ABCO”), and Evolent Health, Inc. (f/k/a VPHealth, Inc.), a Delaware corporation (“Evolent”), (each, a “Party”, and collectively, the “Parties”).
RECITALS
WHEREAS, ABCO and Evolent entered into a Services, Reseller and Non-Competition Agreement (the “Original Agreement”), effective as of August 31, 2011 (the “Original Effective Date”);
WHEREAS, since entering into the Original Agreement, Evolent and ABCO have continued to explore ways to improve the efficiency and implementation of their relationship; and
WHEREAS, as a result of the foregoing efforts, the Parties have agreed to amend and restate the Original Agreement as set forth in this Agreement.
NOW, THEREFORE, in consideration of the above recitals, the terms and conditions hereinafter set forth, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto agree as follows:
1. DEFINITIONS. For purposes of this Agreement:
1.1 “ABCO Restricted Products and Services” means (a) care management services including, but not limited to, traditional disease management services, direct patient outreach and other service-based care management offerings (e.g., readmissions management teams, nurse call centers, on-site care management teams); (b) care management workflow software designed for and used by provider-owned payor organizations or other entities intending to conduct active care management campaigns targeted at managing population health/longitudinal outcomes (i.e, solutions that are the same as or substantially similar to (i.e. functionality that is redundant in substantial and material respects with) HealthPlaNet); (c) services primarily intended to support cost reduction and benefit changes for health system employees; (d) consulting services comparable and competitive with blueprint consulting services offered by Evolent as of the Effective Date (“Blueprint Services”), (e) Exclusive TPA Services or (f) Crimson Care Registry products. For the avoidance of doubt, Restricted Products and Services does not include behavioral health-related services or software (e.g., Askesis Development Group software), services similar to those offered by UPMC WorkPartners (e.g., “Take-a-Healthy-Step” or similar health and wellness programs, occupational medicine, on-site clinic implementation and administration, employee assistance services, absence management or workers’ compensation services), or software or solutions similar to those offered by EBenefits Solutions, LLC.
1.2 “Active Sales Process”, with respect to any Person as of any date on which Evolent proposes to add such Person to the list of Evolent Top Prospects, means such Person (a) is not an Evolent Client as of such date and (b) either (i) has purchased ABCO Restricted Products and Services from ABCO prior to such date or (b) was engaged in active discussions with ABCO about acquiring ABCO Restricted Products and Services (including, but not limited to, a review of the applicable offering of ABCO Restricted Products and Services) as of such date.
1.3 “Affiliate” means any Person which Controls, is Controlled by, or is in common Control with, another Person.
1.4 “Business Plan” has the meaning set forth in that certain Intellectual Property License and Data Access Agreement between the Parties.
1.5 “Change of Control” with respect to any entity means a transaction or series of related transactions in which a Person, or a group of related Persons, acquires from stockholders of the subject entity, the entity’s shares representing more than fifty percent (50%) of the outstanding voting power of such entity.
1.6 “Confidential Information” means any and all technical and non-technical information, whether conveyed verbally, in writing, electronically or by any other means, including, but not limited to, trade secrets, source code, technology, know-how and proprietary information, techniques, plans or any other information relating to any research project, analysis, work in process, future development, scientific, engineering, marketing or business plans or financial, contractual or personnel matters relating to either Party or its present or future products, services, sales, suppliers, identity of and information relating to customers and prospective customers, customer or prospect list, prospective employees, investors or affiliates or other proprietary information disclosed or otherwise supplied in confidence by either Party to the other, to the extent that such information is provided pursuant to this Agreement by one Party to the other Party and is marked “confidential” or “proprietary” or that should be reasonably understood by the Receiving Party (based on the nature of the information or the context in which the information is disclosed) should be considered confidential. Confidential Information will not include information to the extent that: (a) such information is or becomes publicly available other than through any act or omission of either Party in breach of this Agreement; (b) such information was received by the Receiving Party, other than under an obligation of confidentiality, from a third party who had no obligation of confidentiality to the other Party; (c) such information was in the possession of the Receiving Party at the time of the disclosure or was independently developed by the Receiving Party, as reflected by the Receiving Party’s internal, written and dated documentation; or (d) an applicable regulation, court order or other legal process requires the disclosure of such information, provided that prior to such disclosure the Disclosing Party will give notice to the other Party so that the other Party may take reasonable steps to oppose or limit such disclosure, so that the Disclosing Party does not disclose any more information than necessary to comply with such legal process. The burden of proof that Confidential Information falls into any one of the above exemptions will be borne by the Party claiming such exemption with documentation or other credible evidence.
1.7 “Control” as used with respect to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities, by agreement or otherwise.
1.8 “Evolent Clients” means entities under a current contract with Evolent for an implementation and/or long-term services contract. 1.9 “Evolent Top Prospects” means, as of any date, up to twenty (20) potential Evolent customers in the Evolent sales pipeline identified by Evolent that are not Evolent Clients as of such date, and (a) are engaged in active discussions with Evolent regarding purchasing Evolent products and services and/or (b) are under a current contract with Evolent for Blueprint Services or other services that do not constitute implementation or long-term services; provided, however, that (i) the list of such potential Evolent customers may be updated by Evolent on a quarterly basis, and ABCO shall have the opportunity upon receipt of each such quarterly update to notify Evolent if any of the Persons added to such list are in an Active Sales Process with ABCO and shall therefore be removed from such list, and (ii) no Person shall remain on the list of Evolent Top Prospects for more than (x) twelve (12) consecutive months, in the case of potential Evolent customers without a signed agreement with Evolent, or (y) twenty-four (24) consecutive months, in the case of potential Evolent Clients that signed an agreement for Blueprint Services with Evolent before or within twelve (12) months of being added to the list of Evolent Top Prospects.
1.10 “Exclusive TPA Services” means certain services as set forth on Schedule 1 of the UPMC Reseller Agreement (as in effect on the Effective Date), to the extent that UPMC Health Plan, Inc., a Pennsylvania nonprofit corporation (“UPMC”), has the exclusive right to provide such services to Evolent, for resale by Evolent to its customers.
1.11 “Disclosing Party” means a Party that provides Confidential Information to the other Party, or the other Party’s Affiliates.
1.12 “Governmental Authority” means any federal, state, municipal, local, territorial, or other governmental department, regulatory authority, judicial or administrative body, whether domestic, foreign or international.
1.13 “Law” means all international, federal, country, state, provincial, local and other laws, rules and regulations, declaration, decree, directive, legislative enactment, order, code, ordinance, regulation, rule or other binding restriction of or by any Governmental Authority, as the same are promulgated, supplemented or amended from time to time.
1.14 “Loss” individually, and collectively, “Losses” means all claims, liabilities, obligations, losses, costs, expenses (including, without limitation, legal, accounting and similar expenses), litigation, proceedings, fines, taxes, levies, imposts, duties, deficiencies, assessments, charges, penalties, allegations, demands, damages (including, but not limited to, actual, punitive or consequential, foreseen or unforeseen, known or unknown, fixed or contingent, and matured or unmatured), civil and criminal violations of Law, settlements and judgments of any kind or nature whatsoever.
1.15 “Person” means any individual, corporation, partnership, firm, joint venture, association, limited liability company, limited liability partnership, joint-stock company, trust, joint venture, unincorporated organization, governmental, judicial or regulatory body, business unit, division or any other business entity, organization or Governmental Authority.
1.16 “Receiving Party” means a Party that receives Confidential Information from the other Party or the other Party’s Affiliates.
1.17 “Statement of Work” or “SOW” means an agreement by and between ABCO and Evolent that contains the detailed description of services, scope, specifications, pricing, implementation plan, timetables, milestones, and other terms and conditions for each procurement of services, as applicable.
1.18 “UPMC Reseller Agreement” means that certain Second Amended and Restated Reseller, Services and Non-Competition Agreement between UPMC and Evolent dated as of [the Effective Date].
2. SERVICES TO BE PROVIDED BY ABCO.
2.1 General Services:
2.1.1 Minimum Purchase. The Parties hereby acknowledge and agree that Evolent has purchased from ABCO a minimum of Two Hundred Thousand Dollars ($200,000) of services (as described in Section 2.2.1) (the “Original Minimum Purchase”) for delivery between the Original Effective Date and the first anniversary thereof.
2.1.2 Statements of Work. The specific description, price, service levels (if applicable) and other project, service, and/or customer-specific terms for a particular service that may be provided by ABCO to Evolent (each, a “Service”, and collectively, the “Services”) shall be set forth in a Statement of Work that will be created on a project by project basis.
2.2 Right of First Offer and Process for Invoking:
2.2.1 Applicable Services. Throughout the Term, ABCO shall have the right of first offer to provide the following services to Evolent and Evolent’s customers:
(a) Physician practice management consulting and other physician practice management services;
(b) Physician incentive design services;
(c) Medical home development consulting services; and
(d) Performance analytics shared with physicians with the intent to improve outcomes.
2.2.2 Process for Exercising Right of First Offer. Evolent shall notify ABCO in writing in the event Evolent desires to receive any of the above services (“First Offer Services”). ABCO shall have a period of thirty (30) days (“First Offer Services Evaluation Period”) within which to conduct its evaluation and diligence with respect to providing such First Offer Services. Evolent shall cooperate with ABCO and provide reasonable assistance and information to ABCO to enable ABCO to conduct its evaluation. Within five (5) business days after the expiration of such First Offer Services Evaluation Period, ABCO shall notify Evolent in writing whether or not it wishes to provide such services to Evolent. If ABCO elects to provide such First Offer Services, Evolent agrees to engage in good faith negotiations with ABCO, on an exclusive basis for a period of sixty (60) days, regarding the specific terms covering such First Offer Services.
2.3 Failure to Execute a Service Agreement for the VBC Innovation Center: The Parties acknowledge and agree that it was their intent as of the Original Effective Date to enter into a service agreement under which Evolent would engage ABCO to provide certain consulting, development and support services in connection with the creation, launch, implementation and ongoing support of a Value-Based Care Innovation Center (the “VBC Innovation Center”), in consideration for which Evolent would pay ABCO a fixed fee of Eight Hundred Thousand Dollars ($800,000) per year (“Fixed Fee”) for each of the first two (2) years of the term of such VBC Innovation Center service agreement. The Parties acknowledge and agree that, notwithstanding the fact that they negotiated with diligence and in good faith the specific terms and conditions of such service agreement, the Parties were unable to reach an agreement with respect to the VBC Innovation Center. Accordingly, the Original Minimum Purchase is increased to One Million Two Hundred Thousand Dollars ($1,200,000) (the “Minimum Purchase”) as follows: (a) between the Original Effective Date and the second anniversary thereof, Evolent shall have purchased from ABCO a minimum of Seven Hundred Thousand Dollars ($700,000) of services for delivery on or prior to such second anniversary of the Original Effective Date), and (b) inclusive of the purchases described in clause (a), between the Original Effective Date and the third anniversary thereof, Evolent shall have purchased from ABCO a minimum of One Million Two Hundred Thousand Dollars ($1,200,000) of services for delivery on or prior to such third anniversary of the Original Effective Date); provided that, for purposes of this sentence, “services” shall include consulting, software, professional or analytic services provided from time to time by ABCO to Evolent (other than services in connection with the provision of any office space by or on behalf of ABCO to Evolent) or, pursuant to a joint written proposal by ABCO and Evolent, to any Evolent Client.
2.4 Reservation of Rights: For the avoidance of doubt, Evolent is not precluded from offering and providing services directly to its customers, subject (a) to (i.e., after ABCO has had the full opportunity to exercise) ABCO’s right of first offer to provide any First Offer Services in accordance with Section 2.2) and (b) to Evolent’s compliance with its non-competition obligations as set forth in Section 6.2.
2.5 Designation of Relationship Managers: In order to support the launch and ongoing success of the exclusive reseller relationship between ABCO and Evolent, each Party agrees to designate a senior level individual who will serve as the primary liaison and “go to” contact and relationship manager for such Party (each, a “Relationship Manager”). Each Party’s Relationship Manager’s role and responsibilities would include: (a) facilitating day-to-day communications between the Parties regarding customer-facing activities, such as marketing, promotional and sales activities and preparing and submitting bids, proposals, responses to requests for proposals, fee estimates, Statements of Work and project plans; (b) receiving and submitting requests between the Parties for information and/or assistance; (c) overseeing the efficient knowledge transfer and flow of information between the Parties; (d) facilitating communications between the appropriate individuals within Evolent and ABCO, with respect to product and service offering development; and (e) providing the first level of performance review or escalation in the event of a Dispute as provided in Section 13. The Relationship Managers will meet regularly, but no less frequently than monthly, as reasonably necessary, to maintain a good working relationship between the Parties. Each Party may change its Relationship Manager by giving the other Party reasonable notice as long as the change is implemented in a manner that does not cause any significant disruption to each Party’s business operations and business relationship.
3. FEES; PAYMENT TERMS; SHORTFALL.
3.1 Fees; Timing of Payments: Evolent shall pay ABCO the applicable fees for the Services performed by ABCO pursuant to a Statement of Work, as follows: (a) unless the Parties otherwise agree in writing, a deposit of 50% of the total fees for the particular project shall be paid upon signing of the Statement of Work; (b) ABCO will submit an invoice to Evolent for the balance upon completion of the work; and (c) Evolent shall pay ABCO for such invoiced amount within thirty (30) days after receipt of such invoice.
3.2 Minimum Purchase and Shortfall: Evolent agrees to pay ABCO the Minimum Purchase. If the aggregate amount of Services actually procured by Evolent from ABCO is not equal to or greater than (a) Seven Hundred Thousand Dollars ($700,000) of services for delivery on or prior to the second anniversary of the Original Effective Date or (b) inclusive of the purchase described in clause (a), the Minimum Purchase of services for delivery on or prior to the third anniversary of the Original Effective Date, Evolent shall pay ABCO the amount of the shortfall (i.e., the difference between Seven Hundred Thousand Dollars ($700,000) or the Minimum Purchase amount, as applicable, less the sum of: (a) the aggregate fees for the actual amount of Services procured; and (b) any Credits (as provided in the next sentence) (the “Shortfall”), if any, on or before August 31, 2013 or August 31, 2014, as applicable. In the event that ABCO refuses or fails, without reasonable cause, to provide any of the Services requested by Evolent (provided the scope of the Services requested is within the scope customarily provided by ABCO), the fees that would otherwise have been applicable had ABCO agreed to provide such Services would count as a “Credit”. As of the date hereof, no such Credits have accrued.
4. TERM AND RENEWAL. The initial term of this Agreement shall commence on the Effective Date and unless sooner terminated in accordance with the terms hereof, shall continue until August 31, 2016 (“Initial Term”). Thereafter, this Agreement shall automatically be renewed for another five-year term (“Renewal Term”) unless either Party elects to terminate this Agreement by providing the other Party with written notice of termination one hundred eighty (180) days prior to the expiration of the current term. (“Initial Term” and “Renewal Term” collectively, the “Term”).
5. REFERRAL FEES, SOLICITATION AND COMPETITION AND POST-CLOSING SERVICES.
5.1 Referral Fees:
5.1.1 During the Term, ABCO will pay Evolent a sales referral fee for any sale made by ABCO that resulted from a “net” new sale from a new customer that was not already in ABCO’s sales pipeline (i.e., a “warm lead”) or a then-current customer of ABCO generated directly by Evolent’s efforts and without any assistance from any ABCO employee or representative (including any Evolent employee that serves on the Board of Directors of ABCO), equal to 5% of the total ABCO revenue from the new customer during the initial twelve (12) months of services under the services agreement with such new customer.
5.1.2 During the Term, Evolent will pay ABCO a sales referral fee for any sale made by Evolent that resulted from a “net” new sale from a new customer that was not already in Evolent’s sales pipeline (i.e., a “warm lead”) or a then-current customer of Evolent generated directly by ABCO’s efforts and without any assistance from any Evolent employee or representative (including any ABCO employee that serves on the Board of Directors of Evolent), in accordance with the following terms:
(a) ABCO will receive a one-time referral fee for any “employee health” diagnostic, consulting or broker services provided by Evolent to a Covered Health System, equal to the lesser of $20,000 or 5% of the total Evolent revenue from the Covered Health System during the initial twelve (12) months of services under the service agreement with such Covered Health System.
(b) ABCO will receive $50,000 per year for three (3) years for each health system joining Evolent as an Employee Health Platform Customer. An “Employee Health Platform Customer” is defined as a health system purchasing diagnostic/consulting services and ongoing medical management/health plan services (i.e., care management, HealthPlaNet care management application, and the TPA platform, etc.).
(c) ABCO will receive $100,000 per year for three (3) years for a health system joining Evolent as a Platform Health Plan Customer. A “Platform Health Plan Customer” is defined as a health system purchasing ongoing medical management services, ongoing health plan outsourcing services (i.e., TPA) and health plan management services for purposes of a licensed insurance entity with at least fifty thousand (50,000) lives (beyond the employee population).
(d) With the exception of making the introduction (either through an email or an in-person meeting) (to generate the “warm lead”), ABCO would not be expected to perform any actual duties or incur actual cost to receive a referral fee.
(e) The annual referral fees for each referral would be capped at the lesser of (x) 5% of annual revenue generated by Evolent for the respective customer and (y) the $50,000 or $100,000 figures described above, as applicable.
6. SOLICITATION AND COMPETITION.
6.1 Scope:
6.1.1 Throughout the Term, ABCO agrees not to offer any ABCO Restricted Products and Services to (a) any Evolent Clients or (b) any Evolent Top Prospects; provided, however, that ABCO shall not be restricted from making any such offer to any Evolent Top Prospect or Evolent Client with whom ABCO was, at the time such Person was identified as an Evolent Top Prospect or became an Evolent Client, engaged in an Active Sales Process. The foregoing restrictions shall not apply in the event of a Change of Control of Evolent or in the event that ABCO ceases to be a shareholder of Evolent.
6.1.2 None of the foregoing would prohibit ABCO from:
(a) Marketing, offering, licensing or selling versions of any of its Crimson Population Risk Management products, or the successors to any such products, provided that such products, or the successors to any such products, are not the same as or substantially similar to (i.e., includes functionality that is redundant in substantial and material respects with) HealthPlaNet as it exists as of the Effective Date.
(b) Supporting employers with care management related best practices and research.
(c) Offering traditional “dedicated advisor” support in conjunction with ABCO’s traditional business intelligence offerings.
(d) Marketing, offering, licensing or selling its employer health product.
(e) Providing physician management consulting and other physician management services.
6.2 Restrictions Relating to Certain ABCO Products and Services: Evolent shall not, until the earlier of (x) ABCO’s ceasing to be a shareholder of Evolent or (y) the seventh (7 ) anniversary of the date of this Agreement, promote, market, provide, offer or sellth (a) unbundled software applications, software tools or other similar technologies (including, without limitation, software as a service, analytics technology or data services) (each, a “Technology Solution”), (b) consulting services that are not intended to lead to or be a part of a Blueprint Services engagement, implementation contract and/or long-term services contract, or (c) any best practices membership programs or unbundled or bundled physician practice management and other physician practice management consulting services, in each case referred to in this clause (c) that are substantially similar to, or that are competitive with, ABCO’s best practices membership programs or physician practice management or other physician practice management consulting services that are offered by ABCO as of the date first written above. For the avoidance of doubt, “unbundled” means on a stand-alone basis, instead of “bundled”, which contemplates that the Technology Solution is both (i) offered as part of a “packaged”, integrated offering, in conjunction with other Evolent products or services that are not Technology Solutions (and not only services that constitute customary software, data and end user support-related services), such as the Exclusive TPA Services, and (ii) incidental to the provision of such other Evolent products or services. Notwithstanding any other provision hereof, the foregoing restrictions in this Section 6.2 shall survive a Change of Control of Evolent for seven (7) years from the date of this Agreement; provided, however, that prior to the seventh (7 ) anniversary of the date of thisth Agreement, the acquiring party in a Change of Control of Evolent shall be not be subject to the foregoing restrictions with respect to any Technology Solutions or consulting services, in each case, that are unrelated to the Evolent assets acquired.
6.3 Non-Solicitation or Hiring: During the Term and for a period of eighteen (18) months thereafter, Evolent shall not solicit or hire any of ABCO’s employees without ABCO’s prior written consent.
7. EXCLUSIVE RESELLER RIGHTS FOR FUTURE PRODUCTS.
In the event that Evolent creates a discrete or segregable product or service that can be sold to healthcare providers, Evolent shall notify ABCO in writing of such new offerings (“New Products”). ABCO shall have a period of ninety (90) days (“New Products Evaluation Period”) within which to conduct its evaluation and diligence with respect to providing such New Products. Evolent shall cooperate with ABCO and provide reasonable assistance and information to ABCO to enable ABCO to conduct its evaluation. Within five (5) business days after the expiration of such New Products Evaluation Period, ABCO shall notify Evolent in writing whether or not it wishes to have the right to resell such New Products. If ABCO elects to resell such New Products, Evolent and ABCO agree to negotiate in good faith on an exclusive basis for one hundred twenty (120) days the terms of a reseller agreement, under which ABCO would be the exclusive distributor (in addition to Evolent) of such New Products.
8. CONFIDENTIALITY.
8.1 Confidential Information: ABCO acknowledges that in connection with its rights and obligations under this Agreement it may gain access to the Confidential Information of Evolent and its customers and Affiliates. Evolent acknowledges that in connection with its rights and obligations under this Agreement, it may gain access to the Confidential Information of ABCO and its customers and Affiliates.
8.2 Non-Disclosure: The Receiving Party may disclose the Disclosing Party’s Confidential Information strictly on a need-to-know basis to only those personnel, including employees of the Receiving Party’s contractors, who require access to the Disclosing Party’s Confidential Information in order to perform or derive benefit from the Services or otherwise meet its obligations under this Agreement. The Receiving Party agrees: (a) to hold the Disclosing Party’s Confidential Information in strict confidence, using the same degree (but no less than a reasonable degree) of care and protection that it exercises with its own Confidential Information of a similar nature; (b) not to directly or indirectly disclose or otherwise make available any Confidential Information of the Disclosing Party to a third party; and (c) not to copy or use the Disclosing Party’s Confidential Information for any purpose other than as necessary to fulfill the Receiving Party’s obligations or exercise its rights under this Agreement. Each Receiving Party is responsible for ensuring that its employees, agents and contractors strictly abide by the requirements of confidentiality and restrictions on use as provided in this Section 8.2 and shall be liable to the Disclosing Party for any acts or omissions of its employees, agents and independent contractors relating to the Disclosing Party’s Confidential Information. The Receiving Party is allowed to disclose Confidential Information of the Disclosing Party to the extent required by Law or by the order or a court of similar judicial or administrative body with jurisdiction, provided that the Receiving Party notifies the Disclosing Party of such required disclosure promptly and in writing and cooperates with the Disclosing Party, at the Disclosing Party’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure. The provisions of this Section 8 shall survive beyond the expiration or termination of this Agreement.
8.3 Injunctive Relief: The Parties acknowledge and agree that monetary damages may be inadequate to compensate for a breach of the provisions contained in this Section 8 or other confidentiality provisions of this Agreement. In the event of such breach, the injured Party shall be entitled to seek injunctive relief (without the need to post bond) and any and all other remedies available at Law or in equity. This Section 8.3 in no way limits the liability or damages that may be assessed against a Party in the event of a breach by the other Party of any of the provisions of this Section 8.
8.4 Residuals: Notwithstanding anything in this Section 8 to the contrary, subject to any applicable statutory intellectual property rights applicable to patents, trademarks or copyrights, either Party may use “Residuals” for any purpose, including without limitation, for use in development, manufacture, promotion, sale and maintenance of its products and services; provided, however, that this right to Residuals does not represent a license under any patents, copyrights or trademarks of the Disclosing Party. The term “Residuals” means any information that is retained in the unaided memories of the Receiving Party’s employees who have had access to the Disclosing Party’s Confidential Information pursuant to the terms of this Agreement.
9. WARRANTIES.
9.1 Authority/No Conflict: ABCO represents and warrants that (a) it has the power and authority to enter into and perform its obligations under this Agreement without conflict with, default under, or violation of any Law, regulation, or agreement binding upon it, and (b) this Agreement has been duly authorized by all necessary organizational action, and duly and validly executed and delivered by it, and constitutes its legally valid and binding obligation, enforceable in accordance with its terms.
9.2 Services: ABCO represents, warrants and covenants that the Services provided under this Agreement will be performed in a professional and workmanlike manner.
9.3 Compliance with Laws/Approvals: Each of ABCO and Evolent shall comply in all material respects with all Laws and regulations applicable to ABCO or Evolent, as applicable, in performing its obligations under this Agreement. To the extent applicable, ABCO shall be responsible for obtaining all necessary permits, licenses, and consents, including governmental approvals, required of ABCO and its contractors in connection with the performance of its obligations under this Agreement, and Evolent shall be responsible for obtaining all necessary permits, licenses, and consents, including governmental approvals, required of Evolent and its contractors in connection with the performance of its obligations under this Agreement.
9.4 Limitations of Warranty: EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, ABCO MAKES NO OTHER WARRANTY OR REPRESENTATION, ORAL, WRITTEN, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE SERVICES, INCLUDING WITHOUT LIMITATION, THEIR QUALITY, PERFORMANCE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, UNINTERRUPTED OR ERROR-FREE OPERATION OR OTHERWISE HEREUNDER. The disclaimer of warranties and limitations set forth in this Agreement constitute an essential part of this Agreement.
10. INDEMNIFICATION.
10.1 IP Indemnification: ABCO shall defend, indemnify and hold harmless Evolent and its Affiliates (other than ABCO), customers, and their respective officers, directors and employees from and against any Losses resulting from a claim that the Services provided by ABCO under this Agreement infringes or misappropriates a third party’s intellectual property rights. ABCO shall also use commercially reasonable efforts to modify the allegedly infringing Services to make it non-infringing, procure a license from the third party claiming infringement to permit Evolent to continue to use the Services, or provide Evolent with functionally equivalent and non-infringing Services. THIS SECTION 10.1 SETS FORTH ABCO’S SOLE AND EXCLUSIVE LIABILITY, AND EVOLENT’S SOLE AND EXCLUSIVE REMEDY, FOR ALLEGATIONS OR CLAIMS OF INFRINGEMENT OF THIRD PARTY RIGHTS OF ANY KIND ASSERTED AGAINST EVOLENT, ITS AFFILIATES (OTHER THAN ABCO), CUSTOMERS AND THEIR RESPECTIVE OFFICERS, DIRECTORS AND EMPLOYEES. ABCO shall not be obligated to indemnify Evolent, its Affiliates, customers, and their respective officers, directors and employees for infringement or misappropriation claims to the extent such claims arise out of use by Evolent or its customers of any of the Services in a manner other than as contemplated by the Parties under this Agreement.
10.2 ABCO’s Indemnification: ABCO hereby agrees to indemnify, defend, and hold Evolent and its Affiliates (other than ABCO), and all of their respective directors, officers, members, managers, partners, employees, agents, successors and assigns, harmless from and against any Losses arising from or related to: (a) the material breach of this Agreement, including any or all SOWs, by ABCO or its personnel (including contractors); (b) breach of any of ABCO’s representations, warranties, and covenants in this Agreement; or (c) negligence or willful misconduct by ABCO or its personnel (including contractors).
10.3 Evolent’s Indemnification: Evolent hereby agrees to indemnify, defend, and hold ABCO and its Affiliates (other than Evolent), and all of their respective directors, officers, members, managers, partners, employees, agents, successors and assigns, harmless from and against any Losses arising from or related to: (a) the material breach of this Agreement, including any or all SOWS, by Evolent or its personnel (including contractors); (b) breach of any of Evolent’s representations, warranties and covenants in this Agreement; or (c) negligence or willful misconduct by Evolent or its personnel (including contractors).
10.4 Indemnification Procedure:
10.4.1 Notice of Claim. Any Party seeking indemnification hereunder (the “Indemnitee”) shall notify the Party liable for such indemnification (the “Indemnitor”) in writing of any event, omission or occurrence that the Indemnitee has determined has given or could give rise to Losses that are indemnifiable hereunder (such written notice being hereinafter referred to as a “Notice of Claims”). Such Notice of Claims shall be given promptly after the Indemnitee becomes aware of its own claim or that of a third party; provided that the failure of any Indemnitee to give notice as provided in this Section 10.4.1 shall not relieve the Indemnitor of its obligations under this Section 10. A Notice of Claims shall specify in reasonable detail the nature and any particulars of the event, omission, or occurrence giving rise to a right of indemnification. The Indemnitor shall satisfy its obligations hereunder, as the case may be, within thirty (30) days of its receipt of a Notice of Claims.
10.4.2 Process. With respect to any third party claim, demand, suit, action, or proceeding that is the subject of a Notice of Claim, the Indemnitor shall, in good faith and at its own expense, defend, contest, or otherwise protect against any such claim, demand, suit, action, or proceeding with legal counsel of its own selection (and reasonably acceptable to the Indemnitee). The Indemnitee shall have the right, but not the obligation, to participate, at its own expense, in the defense thereof through counsel of its own choice and shall have the right, but not the obligation, to assert any and all cross claims or counterclaims it may have. So long as the Indemnitor is defending in good faith any such third party claim, demand, suit, action or proceeding, the Indemnitee shall at all times cooperate, at its own expense, in all reasonable ways with, make its relevant files and records available for inspection and copying by, and make its employees available or otherwise render reasonable assistance to, the Indemnitor. In the event that the Indemnitor fails to timely defend, contest or otherwise protect against any such third party claim, demand, suit, action, or proceeding, the Indemnitee shall have the right, but not the obligation, to defend, contest, assert cross claims or counterclaims, or otherwise protect against, the same and may make any compromise or settlement thereof and be entitled to all amounts paid as a result of such third party claim, demand, suit, or action or any compromise or settlement thereof. The Indemnitor will not consent to the entry of any judgment or enter into any settlement with respect to any such third party claim, demand, suit, action or proceeding without the prior written consent of the Indemnitee, which will not be unreasonably withheld, and provided that no settlement shall require the Indemnitee to admit liability, or perform or become subject to additional obligations thereunder.
11. LIMITS OF LIABILITY. EXCEPT WITH RESPECT TO OR BREACH BY EITHER PARTY OF THE OTHER PARTY’S CONFIDENTIAL INFORMATION UNDER SECTION 8,
NEITHER EVOLENT NOR ABCO SHALL BE LIABLE FOR, NOR WILL THE MEASURE OF DAMAGES INCLUDE, ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OR AMOUNTS INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF INCOME, PROFITS, OR SAVINGS, LOSS OF DATA, OR COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES, ARISING OUT OF OR RELATING TO ITS PERFORMANCE UNDER THIS AGREEMENT UNDER ANY CAUSE OF ACTION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL EITHER PARTY’S LIABILITY EXCEED THE AMOUNT OF REVENUE ACTUALLY RECEIVED BY ABCO IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO THE CLAIM.
12. TERMINATION.
12.1 Termination for Cause: Either Party shall have the right to terminate this Agreement in the event the other Party materially violates a material provision of this Agreement and such violation is not cured or cannot be cured within thirty (30) days after written notice of such material violation.
12.2 Survival: The rights and obligations contained in Sections 1, 5 (with respect to Evolent’s payment obligations that may extend beyond the Term), 6.2, 6.3, 8, 9.4, 10, 11, 12.2, 13 and 14 shall survive any termination or expiration of this Agreement.
13. ESCALATION; DISPUTE RESOLUTION. Subject to the terms of Section 13.5, the procedures of this Section 13 will control the resolution of any and all disputes between the Parties including, without limitation, any dispute relating to disputed monies owing or breach of warranty (each, a “Dispute”). The Parties will seek to resolve each Dispute as follows:
13.1 First Level Performance Review: Each Party’s Relationship Manager will meet as often as will reasonably be required by either Party to review the performance of either Party under this Agreement and to resolve the Dispute. If these representatives are unable to resolve the Dispute within ten (10) business days after the initial request for a meeting, then the Parties will submit the Dispute to an executive level performance review as provided in Section 13.2 below.
13.2 Executive Level Performance Review: Face-to-face negotiations will be conducted by a senior executive officer of each Party (or such other executive as a Party may designate). If these representatives are unable to resolve the Dispute within five (5) business days after the Parties have commenced negotiations or ten (10) business days have passed since the initial request for a meeting at this level, then the Parties may jointly engage the services of a third-party mediator.
13.3 Arbitration: If the Parties are unable to resolve the Dispute through the alternative mechanisms described above, the Parties shall submit the Dispute for resolution through binding arbitration, except as otherwise provided in Section 13.5. The Parties agree and consent to such arbitration proceeding taking place in Wilmington, Delaware, and in accordance with the Commercial Arbitration Rules of the American Arbitration Association, except that discovery may be had in accordance with the Federal Rules of Civil Procedure. The Parties shall be permitted at least six (6) months from the date of the filing of the Arbitration Demand to conduct discovery. The arbitration proceedings shall be conducted by a panel of three (3) impartial arbitrators, with each Party selecting one (1) of the impartial arbitrators and those two (2) arbitrators then selecting the third impartial arbitrator, all such selections to be made through the procedures of the American Arbitration Association. At least one (1) arbitrator must be an attorney licensed under the Laws of Pennsylvania and at least one (1) arbitrator (may be the same Person as the Pennsylvania attorney) must have direct and substantial experience in the industry pertinent to the subject matter of the Dispute. Judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof; provided, however, in rendering its decision, the arbitrators shall be bound by the Laws of the Commonwealth of Pennsylvania (without regard to its conflicts of laws provisions) and by the terms and conditions of this Agreement setting forth the rights and responsibilities of the Parties. The decision of the arbitration panel shall be accompanied by a written opinion setting forth the factual and legal bases for the award. The arbitrators shall issue such written decision within thirty (30) days of the conclusion of the arbitration hearing. The arbitrators appointed hereunder shall not have the power to award punitive damages. Service of a petition to confirm the arbitration award may be made by United States mail, postage prepaid, or by any regularly conducted commercial express mail service, to the attorney for the Party or, if not so represented, to the Party at the address set forth herein, or to the Party’s last known business address. The prevailing Party in any action related to or arising under this Agreement shall be entitled to reasonable attorneys’ fees and costs.
13.3.1 For any Dispute in which the amount in controversy is at least One Million Dollars ($1,000,000), the following additional procedures apply:
(a) a certified court reporter shall transcribe the arbitration hearings; The Parties initially split the cost of the reporter, but such costs shall ultimately be awarded to the Party prevailing in the arbitration proceeding; and
(b) either Party may take an appeal from the final decision by making a written demand within twenty (20) days of the award.
13.3.2 Any such appeal shall be conducted as follows:
(a) such appeals are limited to issues of Law (i.e., the original award (1) contains material errors of Law such that the original award is not founded on any appropriate legal basis; (2) is based on factual findings clearly unsupported by the record; or (3) is subject to one or more grounds set forth in Section 10 of the Federal Arbitration Act or 42 Pa. C.S.A. §7341 for vacating an award);
(b) the Person hearing the appeal shall be a former federal judge mutually agreed to by the Parties or selected through the procedures of the American Arbitration Association. The former judge shall act as the appellate arbitrator;
(c) the submissions on appeal are limited to (1) the record of the arbitration, (2) a 30-page brief by the appellant, (3) a 30-page brief by the appellee and (4) a 10-page response by the appellant. The appellate arbitrator will set the dates for submission of the briefs. Oral argument may be heard at the discretion of the appellate arbitrator;
(d) the appellate arbitrator shall render a written decision within sixty (60) days of the final submission;
(e) during the pendency of the arbitration appeal, the Parties agree to suspend any running of the time to seek enforcement of the original award. The Parties also agree to waive any appeal to state or federal courts based on the grounds set forth in Section 10 of the Federal Arbitration Act for vacating an award and 42 Pa. C.S.A. § 7341;
(f) the appellate arbitrator must award costs and attorneys’ fees to the prevailing Party; and
(g) the decision of the appellate arbitrator shall be final.
13.4 Continued Performance: Each Party acknowledges that the timely and complete performance of its obligations pursuant to this Agreement is critical to the business and operations of the other Party. Accordingly, in the event of a Dispute, each Party shall continue to so perform all of its obligations under this Agreement, in good faith during the resolution of such Dispute unless and until (a) authority to stop doing so is granted or conferred by a court of competent jurisdiction or (b) this Agreement is terminated in accordance with the provisions hereof.
13.5 Equitable Relief: Notwithstanding anything contained in this Agreement to the contrary, the Parties will be entitled to seek injunctive relief, specific performance or other equitable relief whenever the facts or circumstances would permit a Party to seek equitable relief in a court of competent jurisdiction. Without limiting the generality of the foregoing, (a) Evolent agrees that there would be irreparable harm to ABCO in the event of any such breach by Evolent of Section 6.2 and ABCO shall be entitled to (i) injunctive relief to prevent breaches of Section 6.2, (ii) specific performance of this Agreement, and (iii) any other remedies provided by Law or equity, including without limitation an award for damages, and (b) ABCO agrees that there would be irreparable harm to Evolent in the event of any such breach by ABCO of Section 6.1.1, and Evolent shall be entitled to (i) injunctive relief to prevent breaches of Section 6.1.1, (ii) specific performance of this Agreement, and (iii) any other remedies provided by Law or equity, including without limitation an award for damages.
14. MISCELLANEOUS PROVISIONS.
14.1 Good Faith and Mutual Agreement: Unless otherwise expressly stated in such provision, if a provision in this Agreement calls for the consent of a Party or the mutual agreement of the Parties, the Parties agree that each will act in good faith, will not unreasonably withhold their consent and that deference shall be given to the other Party’s reasonable business requirements, and the requirements of the Parties’ respective regulators and internal controls procedures.
14.2 Independent Contractor: The relationship of ABCO to Evolent shall at all times be that of an independent contractor. Nothing in this Agreement shall be construed to create any partnership, association, joint venture, or employment between the Parties. Each Party shall have the sole and exclusive control over the labor and employee relations policies and policies relating to wages, hours, working conditions, benefits, or other conditions of its personnel and shall be responsible and liable for the acts and omissions of its employees, agents and contractors.
14.3 Assignability: Evolent has entered into this Agreement because of the expertise of ABCO, and ABCO understands that the obligations of ABCO are personal to ABCO and may not be assigned to any other company, partnership or individual without the express written consent of Evolent; provided, however, that no consent shall be required if an assignment is made in connection with a sale of all or substantially all of ABCO’s assets or stock, or in connection with a merger or Change of Control. Evolent may assign this Agreement (including the licenses granted pursuant to this Agreement) to any Affiliate of Evolent as part of an internal reorganization or in connection with a sale of substantially all of its assets or stock, or in connection with a merger or Change of Control.
14.4 Governing Law and Jurisdiction: This Agreement shall be governed by and construed and enforced in accordance with the Laws of the Commonwealth of Pennsylvania, without regard to that state or any other state’s conflicts of law rules. Each Party irrevocably consents to the personal jurisdiction of the state and federal courts located in Wilmington, Delaware for any suit or action arising from or related to this Agreement.
14.5 Force Majeure: Neither Party shall be deemed in default of this Agreement to the extent that performance of their obligations or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, act of government, or any other cause beyond the control of such Party, provided that such Party gives the other Party written notice thereof promptly and, in any event, within fifteen (15) days of discovery thereof, and uses its commercially reasonable efforts to cure any such breach.
14.6 Entire Agreement: This Agreement and its exhibits, schedules, and attachments constitute the entire understanding between the Parties with respect to the subject matter hereof and supersede all prior written or oral representations with respect to the subject matter hereof. This Agreement may not be modified, amended, or otherwise changed in any manner except by a written instrument executed by the Party against whom enforcement is sought.
14.7 Cumulative Remedies: Except as expressly provided in this Agreement, (a) remedies for breach are cumulative and may be exercised separately or concurrently, (b) the exercise of one remedy is not an election of that remedy to the exclusion of others, and (c) the provision for any remedy in this Agreement shall not affect remedies otherwise available at Law or in equity.
14.8 No Third Party Beneficiaries: The Parties do not intend that this Agreement creates any right or cause of action in or on behalf of any Person other than Evolent and ABCO.
14.9 Headings: Section headings have been included in this Agreement merely for convenience of reference. They are not to be considered part of, or to be used in interpreting this Agreement.
14.10 Binding Effect: The covenants and conditions contained herein will apply to and bind the successors, representatives, and permitted assigns of the Parties.
14.11 Expenses: Each Party shall be responsible for its own legal, accounting and other transaction costs relating to the transactions contemplated in this Agreement.
14.12 Notices: All notices required to be given hereunder shall be in writing and given hereunder, as elected by the Party giving notice, as follows: (a) by personal delivery, (b) sent by overnight courier with confirmation of receipt, or (c) dispatched by certified or registered mail, return receipt requested, postage prepaid, addressed to the Parties as follows.
If to Evolent: Evolent, Inc.
800 N. Glebe Road, Suite 500
Arlington, VA 22203
Attention: President
Morgan Lewis & Bockius, LLP
225 Franklin Street
Boston, MA 02110
Attention: Mark B. Stein, Esq.
Fax No.: (617) 341-7701
If to ABCO: The Advisory Board Company
2445 M St. NW
Washington, DC 20037
Attention: General Counsel
Notice shall be deemed given (a) on the date of receipt if delivered personally; (b) on the business day following delivery of such notice to the overnight courier; or (c) three (3) business days after deposit in the mail in accordance with the foregoing. Either Party may change the address to which to send notices by notifying the other Party of such change of address in writing in accordance with the foregoing.
14.13 Press Releases: No press releases or other public announcements concerning the transactions contemplated by this Agreement shall be made by ABCO or Evolent without the prior written consent of both Parties; provided, however, that nothing herein shall prevent a Party from supplying such information or making statements as required by governmental authority or in order for a Party to satisfy its legal obligations (prompt notice of which shall in any such case be given to the other Party).
14.14 Severability: Any terms or provisions of this Agreement that shall prove to be invalid, void or illegal shall in no way affect, impair, or invalidate any other term or provision herein and such remaining terms and provisions shall remain in full force and effect provided that its general purposes are still reasonably capable of being effected. All such terms or provisions which are determined by a court of competent jurisdiction or other dispute resolution proceeding to be invalid, void or illegal shall be construed and limited so as to allow the maximum effect permissible by Law.
14.15 Waiver: The waiver by either Party to this Agreement of any one or more defaults, if any, on the part of the other, shall not be construed to operate as a waiver of any other or future defaults under the same or different terms, conditions or covenants contained in this Agreement.
IN WITNESS WHEREOF, the Parties have executed this Agreement effective as of the date first written above.
THE ADVISORY BOARD COMPANY EVOLENT HEALTH, INC.
/s/ Evan Farber
By: Evan Farber By:
Its: General Counsel Its:
[Signature Page to Amended and Restated Services, Reseller and Non-Competition Agreement]
IN WITNESS WHEREOF, the Parties have executed this Agreement effective as of the date first written above.
THE ADVISORY BOARD COMPANY EVOLENT HEALTH, INC.
/s/ Frank Williams
By: By: Frank Williams
Its: Its: CEO
| Entailment |
622_nda-5 | 622_nda-5_0 | Q: Receiving Party may share some Confidential Information with some of Receiving Party's employees.
Text: Exhibit 10.16
AMENDED AND RESTATED
SERVICES, RESELLER AND NON-COMPETITION AGREEMENT
THIS AMENDED AND RESTATED SERVICES, RESELLER AND NON-COMPETITION AGREEMENT (this “Agreement”) is made and entered into effective as of June 27, 2013 (the “Effective Date”) by and between The Advisory Board Company, a Delaware corporation (“ABCO”), and Evolent Health, Inc. (f/k/a VPHealth, Inc.), a Delaware corporation (“Evolent”), (each, a “Party”, and collectively, the “Parties”).
RECITALS
WHEREAS, ABCO and Evolent entered into a Services, Reseller and Non-Competition Agreement (the “Original Agreement”), effective as of August 31, 2011 (the “Original Effective Date”);
WHEREAS, since entering into the Original Agreement, Evolent and ABCO have continued to explore ways to improve the efficiency and implementation of their relationship; and
WHEREAS, as a result of the foregoing efforts, the Parties have agreed to amend and restate the Original Agreement as set forth in this Agreement.
NOW, THEREFORE, in consideration of the above recitals, the terms and conditions hereinafter set forth, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto agree as follows:
1. DEFINITIONS. For purposes of this Agreement:
1.1 “ABCO Restricted Products and Services” means (a) care management services including, but not limited to, traditional disease management services, direct patient outreach and other service-based care management offerings (e.g., readmissions management teams, nurse call centers, on-site care management teams); (b) care management workflow software designed for and used by provider-owned payor organizations or other entities intending to conduct active care management campaigns targeted at managing population health/longitudinal outcomes (i.e, solutions that are the same as or substantially similar to (i.e. functionality that is redundant in substantial and material respects with) HealthPlaNet); (c) services primarily intended to support cost reduction and benefit changes for health system employees; (d) consulting services comparable and competitive with blueprint consulting services offered by Evolent as of the Effective Date (“Blueprint Services”), (e) Exclusive TPA Services or (f) Crimson Care Registry products. For the avoidance of doubt, Restricted Products and Services does not include behavioral health-related services or software (e.g., Askesis Development Group software), services similar to those offered by UPMC WorkPartners (e.g., “Take-a-Healthy-Step” or similar health and wellness programs, occupational medicine, on-site clinic implementation and administration, employee assistance services, absence management or workers’ compensation services), or software or solutions similar to those offered by EBenefits Solutions, LLC.
1.2 “Active Sales Process”, with respect to any Person as of any date on which Evolent proposes to add such Person to the list of Evolent Top Prospects, means such Person (a) is not an Evolent Client as of such date and (b) either (i) has purchased ABCO Restricted Products and Services from ABCO prior to such date or (b) was engaged in active discussions with ABCO about acquiring ABCO Restricted Products and Services (including, but not limited to, a review of the applicable offering of ABCO Restricted Products and Services) as of such date.
1.3 “Affiliate” means any Person which Controls, is Controlled by, or is in common Control with, another Person.
1.4 “Business Plan” has the meaning set forth in that certain Intellectual Property License and Data Access Agreement between the Parties.
1.5 “Change of Control” with respect to any entity means a transaction or series of related transactions in which a Person, or a group of related Persons, acquires from stockholders of the subject entity, the entity’s shares representing more than fifty percent (50%) of the outstanding voting power of such entity.
1.6 “Confidential Information” means any and all technical and non-technical information, whether conveyed verbally, in writing, electronically or by any other means, including, but not limited to, trade secrets, source code, technology, know-how and proprietary information, techniques, plans or any other information relating to any research project, analysis, work in process, future development, scientific, engineering, marketing or business plans or financial, contractual or personnel matters relating to either Party or its present or future products, services, sales, suppliers, identity of and information relating to customers and prospective customers, customer or prospect list, prospective employees, investors or affiliates or other proprietary information disclosed or otherwise supplied in confidence by either Party to the other, to the extent that such information is provided pursuant to this Agreement by one Party to the other Party and is marked “confidential” or “proprietary” or that should be reasonably understood by the Receiving Party (based on the nature of the information or the context in which the information is disclosed) should be considered confidential. Confidential Information will not include information to the extent that: (a) such information is or becomes publicly available other than through any act or omission of either Party in breach of this Agreement; (b) such information was received by the Receiving Party, other than under an obligation of confidentiality, from a third party who had no obligation of confidentiality to the other Party; (c) such information was in the possession of the Receiving Party at the time of the disclosure or was independently developed by the Receiving Party, as reflected by the Receiving Party’s internal, written and dated documentation; or (d) an applicable regulation, court order or other legal process requires the disclosure of such information, provided that prior to such disclosure the Disclosing Party will give notice to the other Party so that the other Party may take reasonable steps to oppose or limit such disclosure, so that the Disclosing Party does not disclose any more information than necessary to comply with such legal process. The burden of proof that Confidential Information falls into any one of the above exemptions will be borne by the Party claiming such exemption with documentation or other credible evidence.
1.7 “Control” as used with respect to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities, by agreement or otherwise.
1.8 “Evolent Clients” means entities under a current contract with Evolent for an implementation and/or long-term services contract. 1.9 “Evolent Top Prospects” means, as of any date, up to twenty (20) potential Evolent customers in the Evolent sales pipeline identified by Evolent that are not Evolent Clients as of such date, and (a) are engaged in active discussions with Evolent regarding purchasing Evolent products and services and/or (b) are under a current contract with Evolent for Blueprint Services or other services that do not constitute implementation or long-term services; provided, however, that (i) the list of such potential Evolent customers may be updated by Evolent on a quarterly basis, and ABCO shall have the opportunity upon receipt of each such quarterly update to notify Evolent if any of the Persons added to such list are in an Active Sales Process with ABCO and shall therefore be removed from such list, and (ii) no Person shall remain on the list of Evolent Top Prospects for more than (x) twelve (12) consecutive months, in the case of potential Evolent customers without a signed agreement with Evolent, or (y) twenty-four (24) consecutive months, in the case of potential Evolent Clients that signed an agreement for Blueprint Services with Evolent before or within twelve (12) months of being added to the list of Evolent Top Prospects.
1.10 “Exclusive TPA Services” means certain services as set forth on Schedule 1 of the UPMC Reseller Agreement (as in effect on the Effective Date), to the extent that UPMC Health Plan, Inc., a Pennsylvania nonprofit corporation (“UPMC”), has the exclusive right to provide such services to Evolent, for resale by Evolent to its customers.
1.11 “Disclosing Party” means a Party that provides Confidential Information to the other Party, or the other Party’s Affiliates.
1.12 “Governmental Authority” means any federal, state, municipal, local, territorial, or other governmental department, regulatory authority, judicial or administrative body, whether domestic, foreign or international.
1.13 “Law” means all international, federal, country, state, provincial, local and other laws, rules and regulations, declaration, decree, directive, legislative enactment, order, code, ordinance, regulation, rule or other binding restriction of or by any Governmental Authority, as the same are promulgated, supplemented or amended from time to time.
1.14 “Loss” individually, and collectively, “Losses” means all claims, liabilities, obligations, losses, costs, expenses (including, without limitation, legal, accounting and similar expenses), litigation, proceedings, fines, taxes, levies, imposts, duties, deficiencies, assessments, charges, penalties, allegations, demands, damages (including, but not limited to, actual, punitive or consequential, foreseen or unforeseen, known or unknown, fixed or contingent, and matured or unmatured), civil and criminal violations of Law, settlements and judgments of any kind or nature whatsoever.
1.15 “Person” means any individual, corporation, partnership, firm, joint venture, association, limited liability company, limited liability partnership, joint-stock company, trust, joint venture, unincorporated organization, governmental, judicial or regulatory body, business unit, division or any other business entity, organization or Governmental Authority.
1.16 “Receiving Party” means a Party that receives Confidential Information from the other Party or the other Party’s Affiliates.
1.17 “Statement of Work” or “SOW” means an agreement by and between ABCO and Evolent that contains the detailed description of services, scope, specifications, pricing, implementation plan, timetables, milestones, and other terms and conditions for each procurement of services, as applicable.
1.18 “UPMC Reseller Agreement” means that certain Second Amended and Restated Reseller, Services and Non-Competition Agreement between UPMC and Evolent dated as of [the Effective Date].
2. SERVICES TO BE PROVIDED BY ABCO.
2.1 General Services:
2.1.1 Minimum Purchase. The Parties hereby acknowledge and agree that Evolent has purchased from ABCO a minimum of Two Hundred Thousand Dollars ($200,000) of services (as described in Section 2.2.1) (the “Original Minimum Purchase”) for delivery between the Original Effective Date and the first anniversary thereof.
2.1.2 Statements of Work. The specific description, price, service levels (if applicable) and other project, service, and/or customer-specific terms for a particular service that may be provided by ABCO to Evolent (each, a “Service”, and collectively, the “Services”) shall be set forth in a Statement of Work that will be created on a project by project basis.
2.2 Right of First Offer and Process for Invoking:
2.2.1 Applicable Services. Throughout the Term, ABCO shall have the right of first offer to provide the following services to Evolent and Evolent’s customers:
(a) Physician practice management consulting and other physician practice management services;
(b) Physician incentive design services;
(c) Medical home development consulting services; and
(d) Performance analytics shared with physicians with the intent to improve outcomes.
2.2.2 Process for Exercising Right of First Offer. Evolent shall notify ABCO in writing in the event Evolent desires to receive any of the above services (“First Offer Services”). ABCO shall have a period of thirty (30) days (“First Offer Services Evaluation Period”) within which to conduct its evaluation and diligence with respect to providing such First Offer Services. Evolent shall cooperate with ABCO and provide reasonable assistance and information to ABCO to enable ABCO to conduct its evaluation. Within five (5) business days after the expiration of such First Offer Services Evaluation Period, ABCO shall notify Evolent in writing whether or not it wishes to provide such services to Evolent. If ABCO elects to provide such First Offer Services, Evolent agrees to engage in good faith negotiations with ABCO, on an exclusive basis for a period of sixty (60) days, regarding the specific terms covering such First Offer Services.
2.3 Failure to Execute a Service Agreement for the VBC Innovation Center: The Parties acknowledge and agree that it was their intent as of the Original Effective Date to enter into a service agreement under which Evolent would engage ABCO to provide certain consulting, development and support services in connection with the creation, launch, implementation and ongoing support of a Value-Based Care Innovation Center (the “VBC Innovation Center”), in consideration for which Evolent would pay ABCO a fixed fee of Eight Hundred Thousand Dollars ($800,000) per year (“Fixed Fee”) for each of the first two (2) years of the term of such VBC Innovation Center service agreement. The Parties acknowledge and agree that, notwithstanding the fact that they negotiated with diligence and in good faith the specific terms and conditions of such service agreement, the Parties were unable to reach an agreement with respect to the VBC Innovation Center. Accordingly, the Original Minimum Purchase is increased to One Million Two Hundred Thousand Dollars ($1,200,000) (the “Minimum Purchase”) as follows: (a) between the Original Effective Date and the second anniversary thereof, Evolent shall have purchased from ABCO a minimum of Seven Hundred Thousand Dollars ($700,000) of services for delivery on or prior to such second anniversary of the Original Effective Date), and (b) inclusive of the purchases described in clause (a), between the Original Effective Date and the third anniversary thereof, Evolent shall have purchased from ABCO a minimum of One Million Two Hundred Thousand Dollars ($1,200,000) of services for delivery on or prior to such third anniversary of the Original Effective Date); provided that, for purposes of this sentence, “services” shall include consulting, software, professional or analytic services provided from time to time by ABCO to Evolent (other than services in connection with the provision of any office space by or on behalf of ABCO to Evolent) or, pursuant to a joint written proposal by ABCO and Evolent, to any Evolent Client.
2.4 Reservation of Rights: For the avoidance of doubt, Evolent is not precluded from offering and providing services directly to its customers, subject (a) to (i.e., after ABCO has had the full opportunity to exercise) ABCO’s right of first offer to provide any First Offer Services in accordance with Section 2.2) and (b) to Evolent’s compliance with its non-competition obligations as set forth in Section 6.2.
2.5 Designation of Relationship Managers: In order to support the launch and ongoing success of the exclusive reseller relationship between ABCO and Evolent, each Party agrees to designate a senior level individual who will serve as the primary liaison and “go to” contact and relationship manager for such Party (each, a “Relationship Manager”). Each Party’s Relationship Manager’s role and responsibilities would include: (a) facilitating day-to-day communications between the Parties regarding customer-facing activities, such as marketing, promotional and sales activities and preparing and submitting bids, proposals, responses to requests for proposals, fee estimates, Statements of Work and project plans; (b) receiving and submitting requests between the Parties for information and/or assistance; (c) overseeing the efficient knowledge transfer and flow of information between the Parties; (d) facilitating communications between the appropriate individuals within Evolent and ABCO, with respect to product and service offering development; and (e) providing the first level of performance review or escalation in the event of a Dispute as provided in Section 13. The Relationship Managers will meet regularly, but no less frequently than monthly, as reasonably necessary, to maintain a good working relationship between the Parties. Each Party may change its Relationship Manager by giving the other Party reasonable notice as long as the change is implemented in a manner that does not cause any significant disruption to each Party’s business operations and business relationship.
3. FEES; PAYMENT TERMS; SHORTFALL.
3.1 Fees; Timing of Payments: Evolent shall pay ABCO the applicable fees for the Services performed by ABCO pursuant to a Statement of Work, as follows: (a) unless the Parties otherwise agree in writing, a deposit of 50% of the total fees for the particular project shall be paid upon signing of the Statement of Work; (b) ABCO will submit an invoice to Evolent for the balance upon completion of the work; and (c) Evolent shall pay ABCO for such invoiced amount within thirty (30) days after receipt of such invoice.
3.2 Minimum Purchase and Shortfall: Evolent agrees to pay ABCO the Minimum Purchase. If the aggregate amount of Services actually procured by Evolent from ABCO is not equal to or greater than (a) Seven Hundred Thousand Dollars ($700,000) of services for delivery on or prior to the second anniversary of the Original Effective Date or (b) inclusive of the purchase described in clause (a), the Minimum Purchase of services for delivery on or prior to the third anniversary of the Original Effective Date, Evolent shall pay ABCO the amount of the shortfall (i.e., the difference between Seven Hundred Thousand Dollars ($700,000) or the Minimum Purchase amount, as applicable, less the sum of: (a) the aggregate fees for the actual amount of Services procured; and (b) any Credits (as provided in the next sentence) (the “Shortfall”), if any, on or before August 31, 2013 or August 31, 2014, as applicable. In the event that ABCO refuses or fails, without reasonable cause, to provide any of the Services requested by Evolent (provided the scope of the Services requested is within the scope customarily provided by ABCO), the fees that would otherwise have been applicable had ABCO agreed to provide such Services would count as a “Credit”. As of the date hereof, no such Credits have accrued.
4. TERM AND RENEWAL. The initial term of this Agreement shall commence on the Effective Date and unless sooner terminated in accordance with the terms hereof, shall continue until August 31, 2016 (“Initial Term”). Thereafter, this Agreement shall automatically be renewed for another five-year term (“Renewal Term”) unless either Party elects to terminate this Agreement by providing the other Party with written notice of termination one hundred eighty (180) days prior to the expiration of the current term. (“Initial Term” and “Renewal Term” collectively, the “Term”).
5. REFERRAL FEES, SOLICITATION AND COMPETITION AND POST-CLOSING SERVICES.
5.1 Referral Fees:
5.1.1 During the Term, ABCO will pay Evolent a sales referral fee for any sale made by ABCO that resulted from a “net” new sale from a new customer that was not already in ABCO’s sales pipeline (i.e., a “warm lead”) or a then-current customer of ABCO generated directly by Evolent’s efforts and without any assistance from any ABCO employee or representative (including any Evolent employee that serves on the Board of Directors of ABCO), equal to 5% of the total ABCO revenue from the new customer during the initial twelve (12) months of services under the services agreement with such new customer.
5.1.2 During the Term, Evolent will pay ABCO a sales referral fee for any sale made by Evolent that resulted from a “net” new sale from a new customer that was not already in Evolent’s sales pipeline (i.e., a “warm lead”) or a then-current customer of Evolent generated directly by ABCO’s efforts and without any assistance from any Evolent employee or representative (including any ABCO employee that serves on the Board of Directors of Evolent), in accordance with the following terms:
(a) ABCO will receive a one-time referral fee for any “employee health” diagnostic, consulting or broker services provided by Evolent to a Covered Health System, equal to the lesser of $20,000 or 5% of the total Evolent revenue from the Covered Health System during the initial twelve (12) months of services under the service agreement with such Covered Health System.
(b) ABCO will receive $50,000 per year for three (3) years for each health system joining Evolent as an Employee Health Platform Customer. An “Employee Health Platform Customer” is defined as a health system purchasing diagnostic/consulting services and ongoing medical management/health plan services (i.e., care management, HealthPlaNet care management application, and the TPA platform, etc.).
(c) ABCO will receive $100,000 per year for three (3) years for a health system joining Evolent as a Platform Health Plan Customer. A “Platform Health Plan Customer” is defined as a health system purchasing ongoing medical management services, ongoing health plan outsourcing services (i.e., TPA) and health plan management services for purposes of a licensed insurance entity with at least fifty thousand (50,000) lives (beyond the employee population).
(d) With the exception of making the introduction (either through an email or an in-person meeting) (to generate the “warm lead”), ABCO would not be expected to perform any actual duties or incur actual cost to receive a referral fee.
(e) The annual referral fees for each referral would be capped at the lesser of (x) 5% of annual revenue generated by Evolent for the respective customer and (y) the $50,000 or $100,000 figures described above, as applicable.
6. SOLICITATION AND COMPETITION.
6.1 Scope:
6.1.1 Throughout the Term, ABCO agrees not to offer any ABCO Restricted Products and Services to (a) any Evolent Clients or (b) any Evolent Top Prospects; provided, however, that ABCO shall not be restricted from making any such offer to any Evolent Top Prospect or Evolent Client with whom ABCO was, at the time such Person was identified as an Evolent Top Prospect or became an Evolent Client, engaged in an Active Sales Process. The foregoing restrictions shall not apply in the event of a Change of Control of Evolent or in the event that ABCO ceases to be a shareholder of Evolent.
6.1.2 None of the foregoing would prohibit ABCO from:
(a) Marketing, offering, licensing or selling versions of any of its Crimson Population Risk Management products, or the successors to any such products, provided that such products, or the successors to any such products, are not the same as or substantially similar to (i.e., includes functionality that is redundant in substantial and material respects with) HealthPlaNet as it exists as of the Effective Date.
(b) Supporting employers with care management related best practices and research.
(c) Offering traditional “dedicated advisor” support in conjunction with ABCO’s traditional business intelligence offerings.
(d) Marketing, offering, licensing or selling its employer health product.
(e) Providing physician management consulting and other physician management services.
6.2 Restrictions Relating to Certain ABCO Products and Services: Evolent shall not, until the earlier of (x) ABCO’s ceasing to be a shareholder of Evolent or (y) the seventh (7 ) anniversary of the date of this Agreement, promote, market, provide, offer or sellth (a) unbundled software applications, software tools or other similar technologies (including, without limitation, software as a service, analytics technology or data services) (each, a “Technology Solution”), (b) consulting services that are not intended to lead to or be a part of a Blueprint Services engagement, implementation contract and/or long-term services contract, or (c) any best practices membership programs or unbundled or bundled physician practice management and other physician practice management consulting services, in each case referred to in this clause (c) that are substantially similar to, or that are competitive with, ABCO’s best practices membership programs or physician practice management or other physician practice management consulting services that are offered by ABCO as of the date first written above. For the avoidance of doubt, “unbundled” means on a stand-alone basis, instead of “bundled”, which contemplates that the Technology Solution is both (i) offered as part of a “packaged”, integrated offering, in conjunction with other Evolent products or services that are not Technology Solutions (and not only services that constitute customary software, data and end user support-related services), such as the Exclusive TPA Services, and (ii) incidental to the provision of such other Evolent products or services. Notwithstanding any other provision hereof, the foregoing restrictions in this Section 6.2 shall survive a Change of Control of Evolent for seven (7) years from the date of this Agreement; provided, however, that prior to the seventh (7 ) anniversary of the date of thisth Agreement, the acquiring party in a Change of Control of Evolent shall be not be subject to the foregoing restrictions with respect to any Technology Solutions or consulting services, in each case, that are unrelated to the Evolent assets acquired.
6.3 Non-Solicitation or Hiring: During the Term and for a period of eighteen (18) months thereafter, Evolent shall not solicit or hire any of ABCO’s employees without ABCO’s prior written consent.
7. EXCLUSIVE RESELLER RIGHTS FOR FUTURE PRODUCTS.
In the event that Evolent creates a discrete or segregable product or service that can be sold to healthcare providers, Evolent shall notify ABCO in writing of such new offerings (“New Products”). ABCO shall have a period of ninety (90) days (“New Products Evaluation Period”) within which to conduct its evaluation and diligence with respect to providing such New Products. Evolent shall cooperate with ABCO and provide reasonable assistance and information to ABCO to enable ABCO to conduct its evaluation. Within five (5) business days after the expiration of such New Products Evaluation Period, ABCO shall notify Evolent in writing whether or not it wishes to have the right to resell such New Products. If ABCO elects to resell such New Products, Evolent and ABCO agree to negotiate in good faith on an exclusive basis for one hundred twenty (120) days the terms of a reseller agreement, under which ABCO would be the exclusive distributor (in addition to Evolent) of such New Products.
8. CONFIDENTIALITY.
8.1 Confidential Information: ABCO acknowledges that in connection with its rights and obligations under this Agreement it may gain access to the Confidential Information of Evolent and its customers and Affiliates. Evolent acknowledges that in connection with its rights and obligations under this Agreement, it may gain access to the Confidential Information of ABCO and its customers and Affiliates.
8.2 Non-Disclosure: The Receiving Party may disclose the Disclosing Party’s Confidential Information strictly on a need-to-know basis to only those personnel, including employees of the Receiving Party’s contractors, who require access to the Disclosing Party’s Confidential Information in order to perform or derive benefit from the Services or otherwise meet its obligations under this Agreement. The Receiving Party agrees: (a) to hold the Disclosing Party’s Confidential Information in strict confidence, using the same degree (but no less than a reasonable degree) of care and protection that it exercises with its own Confidential Information of a similar nature; (b) not to directly or indirectly disclose or otherwise make available any Confidential Information of the Disclosing Party to a third party; and (c) not to copy or use the Disclosing Party’s Confidential Information for any purpose other than as necessary to fulfill the Receiving Party’s obligations or exercise its rights under this Agreement. Each Receiving Party is responsible for ensuring that its employees, agents and contractors strictly abide by the requirements of confidentiality and restrictions on use as provided in this Section 8.2 and shall be liable to the Disclosing Party for any acts or omissions of its employees, agents and independent contractors relating to the Disclosing Party’s Confidential Information. The Receiving Party is allowed to disclose Confidential Information of the Disclosing Party to the extent required by Law or by the order or a court of similar judicial or administrative body with jurisdiction, provided that the Receiving Party notifies the Disclosing Party of such required disclosure promptly and in writing and cooperates with the Disclosing Party, at the Disclosing Party’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure. The provisions of this Section 8 shall survive beyond the expiration or termination of this Agreement.
8.3 Injunctive Relief: The Parties acknowledge and agree that monetary damages may be inadequate to compensate for a breach of the provisions contained in this Section 8 or other confidentiality provisions of this Agreement. In the event of such breach, the injured Party shall be entitled to seek injunctive relief (without the need to post bond) and any and all other remedies available at Law or in equity. This Section 8.3 in no way limits the liability or damages that may be assessed against a Party in the event of a breach by the other Party of any of the provisions of this Section 8.
8.4 Residuals: Notwithstanding anything in this Section 8 to the contrary, subject to any applicable statutory intellectual property rights applicable to patents, trademarks or copyrights, either Party may use “Residuals” for any purpose, including without limitation, for use in development, manufacture, promotion, sale and maintenance of its products and services; provided, however, that this right to Residuals does not represent a license under any patents, copyrights or trademarks of the Disclosing Party. The term “Residuals” means any information that is retained in the unaided memories of the Receiving Party’s employees who have had access to the Disclosing Party’s Confidential Information pursuant to the terms of this Agreement.
9. WARRANTIES.
9.1 Authority/No Conflict: ABCO represents and warrants that (a) it has the power and authority to enter into and perform its obligations under this Agreement without conflict with, default under, or violation of any Law, regulation, or agreement binding upon it, and (b) this Agreement has been duly authorized by all necessary organizational action, and duly and validly executed and delivered by it, and constitutes its legally valid and binding obligation, enforceable in accordance with its terms.
9.2 Services: ABCO represents, warrants and covenants that the Services provided under this Agreement will be performed in a professional and workmanlike manner.
9.3 Compliance with Laws/Approvals: Each of ABCO and Evolent shall comply in all material respects with all Laws and regulations applicable to ABCO or Evolent, as applicable, in performing its obligations under this Agreement. To the extent applicable, ABCO shall be responsible for obtaining all necessary permits, licenses, and consents, including governmental approvals, required of ABCO and its contractors in connection with the performance of its obligations under this Agreement, and Evolent shall be responsible for obtaining all necessary permits, licenses, and consents, including governmental approvals, required of Evolent and its contractors in connection with the performance of its obligations under this Agreement.
9.4 Limitations of Warranty: EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, ABCO MAKES NO OTHER WARRANTY OR REPRESENTATION, ORAL, WRITTEN, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE SERVICES, INCLUDING WITHOUT LIMITATION, THEIR QUALITY, PERFORMANCE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, UNINTERRUPTED OR ERROR-FREE OPERATION OR OTHERWISE HEREUNDER. The disclaimer of warranties and limitations set forth in this Agreement constitute an essential part of this Agreement.
10. INDEMNIFICATION.
10.1 IP Indemnification: ABCO shall defend, indemnify and hold harmless Evolent and its Affiliates (other than ABCO), customers, and their respective officers, directors and employees from and against any Losses resulting from a claim that the Services provided by ABCO under this Agreement infringes or misappropriates a third party’s intellectual property rights. ABCO shall also use commercially reasonable efforts to modify the allegedly infringing Services to make it non-infringing, procure a license from the third party claiming infringement to permit Evolent to continue to use the Services, or provide Evolent with functionally equivalent and non-infringing Services. THIS SECTION 10.1 SETS FORTH ABCO’S SOLE AND EXCLUSIVE LIABILITY, AND EVOLENT’S SOLE AND EXCLUSIVE REMEDY, FOR ALLEGATIONS OR CLAIMS OF INFRINGEMENT OF THIRD PARTY RIGHTS OF ANY KIND ASSERTED AGAINST EVOLENT, ITS AFFILIATES (OTHER THAN ABCO), CUSTOMERS AND THEIR RESPECTIVE OFFICERS, DIRECTORS AND EMPLOYEES. ABCO shall not be obligated to indemnify Evolent, its Affiliates, customers, and their respective officers, directors and employees for infringement or misappropriation claims to the extent such claims arise out of use by Evolent or its customers of any of the Services in a manner other than as contemplated by the Parties under this Agreement.
10.2 ABCO’s Indemnification: ABCO hereby agrees to indemnify, defend, and hold Evolent and its Affiliates (other than ABCO), and all of their respective directors, officers, members, managers, partners, employees, agents, successors and assigns, harmless from and against any Losses arising from or related to: (a) the material breach of this Agreement, including any or all SOWs, by ABCO or its personnel (including contractors); (b) breach of any of ABCO’s representations, warranties, and covenants in this Agreement; or (c) negligence or willful misconduct by ABCO or its personnel (including contractors).
10.3 Evolent’s Indemnification: Evolent hereby agrees to indemnify, defend, and hold ABCO and its Affiliates (other than Evolent), and all of their respective directors, officers, members, managers, partners, employees, agents, successors and assigns, harmless from and against any Losses arising from or related to: (a) the material breach of this Agreement, including any or all SOWS, by Evolent or its personnel (including contractors); (b) breach of any of Evolent’s representations, warranties and covenants in this Agreement; or (c) negligence or willful misconduct by Evolent or its personnel (including contractors).
10.4 Indemnification Procedure:
10.4.1 Notice of Claim. Any Party seeking indemnification hereunder (the “Indemnitee”) shall notify the Party liable for such indemnification (the “Indemnitor”) in writing of any event, omission or occurrence that the Indemnitee has determined has given or could give rise to Losses that are indemnifiable hereunder (such written notice being hereinafter referred to as a “Notice of Claims”). Such Notice of Claims shall be given promptly after the Indemnitee becomes aware of its own claim or that of a third party; provided that the failure of any Indemnitee to give notice as provided in this Section 10.4.1 shall not relieve the Indemnitor of its obligations under this Section 10. A Notice of Claims shall specify in reasonable detail the nature and any particulars of the event, omission, or occurrence giving rise to a right of indemnification. The Indemnitor shall satisfy its obligations hereunder, as the case may be, within thirty (30) days of its receipt of a Notice of Claims.
10.4.2 Process. With respect to any third party claim, demand, suit, action, or proceeding that is the subject of a Notice of Claim, the Indemnitor shall, in good faith and at its own expense, defend, contest, or otherwise protect against any such claim, demand, suit, action, or proceeding with legal counsel of its own selection (and reasonably acceptable to the Indemnitee). The Indemnitee shall have the right, but not the obligation, to participate, at its own expense, in the defense thereof through counsel of its own choice and shall have the right, but not the obligation, to assert any and all cross claims or counterclaims it may have. So long as the Indemnitor is defending in good faith any such third party claim, demand, suit, action or proceeding, the Indemnitee shall at all times cooperate, at its own expense, in all reasonable ways with, make its relevant files and records available for inspection and copying by, and make its employees available or otherwise render reasonable assistance to, the Indemnitor. In the event that the Indemnitor fails to timely defend, contest or otherwise protect against any such third party claim, demand, suit, action, or proceeding, the Indemnitee shall have the right, but not the obligation, to defend, contest, assert cross claims or counterclaims, or otherwise protect against, the same and may make any compromise or settlement thereof and be entitled to all amounts paid as a result of such third party claim, demand, suit, or action or any compromise or settlement thereof. The Indemnitor will not consent to the entry of any judgment or enter into any settlement with respect to any such third party claim, demand, suit, action or proceeding without the prior written consent of the Indemnitee, which will not be unreasonably withheld, and provided that no settlement shall require the Indemnitee to admit liability, or perform or become subject to additional obligations thereunder.
11. LIMITS OF LIABILITY. EXCEPT WITH RESPECT TO OR BREACH BY EITHER PARTY OF THE OTHER PARTY’S CONFIDENTIAL INFORMATION UNDER SECTION 8,
NEITHER EVOLENT NOR ABCO SHALL BE LIABLE FOR, NOR WILL THE MEASURE OF DAMAGES INCLUDE, ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OR AMOUNTS INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF INCOME, PROFITS, OR SAVINGS, LOSS OF DATA, OR COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES, ARISING OUT OF OR RELATING TO ITS PERFORMANCE UNDER THIS AGREEMENT UNDER ANY CAUSE OF ACTION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL EITHER PARTY’S LIABILITY EXCEED THE AMOUNT OF REVENUE ACTUALLY RECEIVED BY ABCO IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO THE CLAIM.
12. TERMINATION.
12.1 Termination for Cause: Either Party shall have the right to terminate this Agreement in the event the other Party materially violates a material provision of this Agreement and such violation is not cured or cannot be cured within thirty (30) days after written notice of such material violation.
12.2 Survival: The rights and obligations contained in Sections 1, 5 (with respect to Evolent’s payment obligations that may extend beyond the Term), 6.2, 6.3, 8, 9.4, 10, 11, 12.2, 13 and 14 shall survive any termination or expiration of this Agreement.
13. ESCALATION; DISPUTE RESOLUTION. Subject to the terms of Section 13.5, the procedures of this Section 13 will control the resolution of any and all disputes between the Parties including, without limitation, any dispute relating to disputed monies owing or breach of warranty (each, a “Dispute”). The Parties will seek to resolve each Dispute as follows:
13.1 First Level Performance Review: Each Party’s Relationship Manager will meet as often as will reasonably be required by either Party to review the performance of either Party under this Agreement and to resolve the Dispute. If these representatives are unable to resolve the Dispute within ten (10) business days after the initial request for a meeting, then the Parties will submit the Dispute to an executive level performance review as provided in Section 13.2 below.
13.2 Executive Level Performance Review: Face-to-face negotiations will be conducted by a senior executive officer of each Party (or such other executive as a Party may designate). If these representatives are unable to resolve the Dispute within five (5) business days after the Parties have commenced negotiations or ten (10) business days have passed since the initial request for a meeting at this level, then the Parties may jointly engage the services of a third-party mediator.
13.3 Arbitration: If the Parties are unable to resolve the Dispute through the alternative mechanisms described above, the Parties shall submit the Dispute for resolution through binding arbitration, except as otherwise provided in Section 13.5. The Parties agree and consent to such arbitration proceeding taking place in Wilmington, Delaware, and in accordance with the Commercial Arbitration Rules of the American Arbitration Association, except that discovery may be had in accordance with the Federal Rules of Civil Procedure. The Parties shall be permitted at least six (6) months from the date of the filing of the Arbitration Demand to conduct discovery. The arbitration proceedings shall be conducted by a panel of three (3) impartial arbitrators, with each Party selecting one (1) of the impartial arbitrators and those two (2) arbitrators then selecting the third impartial arbitrator, all such selections to be made through the procedures of the American Arbitration Association. At least one (1) arbitrator must be an attorney licensed under the Laws of Pennsylvania and at least one (1) arbitrator (may be the same Person as the Pennsylvania attorney) must have direct and substantial experience in the industry pertinent to the subject matter of the Dispute. Judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof; provided, however, in rendering its decision, the arbitrators shall be bound by the Laws of the Commonwealth of Pennsylvania (without regard to its conflicts of laws provisions) and by the terms and conditions of this Agreement setting forth the rights and responsibilities of the Parties. The decision of the arbitration panel shall be accompanied by a written opinion setting forth the factual and legal bases for the award. The arbitrators shall issue such written decision within thirty (30) days of the conclusion of the arbitration hearing. The arbitrators appointed hereunder shall not have the power to award punitive damages. Service of a petition to confirm the arbitration award may be made by United States mail, postage prepaid, or by any regularly conducted commercial express mail service, to the attorney for the Party or, if not so represented, to the Party at the address set forth herein, or to the Party’s last known business address. The prevailing Party in any action related to or arising under this Agreement shall be entitled to reasonable attorneys’ fees and costs.
13.3.1 For any Dispute in which the amount in controversy is at least One Million Dollars ($1,000,000), the following additional procedures apply:
(a) a certified court reporter shall transcribe the arbitration hearings; The Parties initially split the cost of the reporter, but such costs shall ultimately be awarded to the Party prevailing in the arbitration proceeding; and
(b) either Party may take an appeal from the final decision by making a written demand within twenty (20) days of the award.
13.3.2 Any such appeal shall be conducted as follows:
(a) such appeals are limited to issues of Law (i.e., the original award (1) contains material errors of Law such that the original award is not founded on any appropriate legal basis; (2) is based on factual findings clearly unsupported by the record; or (3) is subject to one or more grounds set forth in Section 10 of the Federal Arbitration Act or 42 Pa. C.S.A. §7341 for vacating an award);
(b) the Person hearing the appeal shall be a former federal judge mutually agreed to by the Parties or selected through the procedures of the American Arbitration Association. The former judge shall act as the appellate arbitrator;
(c) the submissions on appeal are limited to (1) the record of the arbitration, (2) a 30-page brief by the appellant, (3) a 30-page brief by the appellee and (4) a 10-page response by the appellant. The appellate arbitrator will set the dates for submission of the briefs. Oral argument may be heard at the discretion of the appellate arbitrator;
(d) the appellate arbitrator shall render a written decision within sixty (60) days of the final submission;
(e) during the pendency of the arbitration appeal, the Parties agree to suspend any running of the time to seek enforcement of the original award. The Parties also agree to waive any appeal to state or federal courts based on the grounds set forth in Section 10 of the Federal Arbitration Act for vacating an award and 42 Pa. C.S.A. § 7341;
(f) the appellate arbitrator must award costs and attorneys’ fees to the prevailing Party; and
(g) the decision of the appellate arbitrator shall be final.
13.4 Continued Performance: Each Party acknowledges that the timely and complete performance of its obligations pursuant to this Agreement is critical to the business and operations of the other Party. Accordingly, in the event of a Dispute, each Party shall continue to so perform all of its obligations under this Agreement, in good faith during the resolution of such Dispute unless and until (a) authority to stop doing so is granted or conferred by a court of competent jurisdiction or (b) this Agreement is terminated in accordance with the provisions hereof.
13.5 Equitable Relief: Notwithstanding anything contained in this Agreement to the contrary, the Parties will be entitled to seek injunctive relief, specific performance or other equitable relief whenever the facts or circumstances would permit a Party to seek equitable relief in a court of competent jurisdiction. Without limiting the generality of the foregoing, (a) Evolent agrees that there would be irreparable harm to ABCO in the event of any such breach by Evolent of Section 6.2 and ABCO shall be entitled to (i) injunctive relief to prevent breaches of Section 6.2, (ii) specific performance of this Agreement, and (iii) any other remedies provided by Law or equity, including without limitation an award for damages, and (b) ABCO agrees that there would be irreparable harm to Evolent in the event of any such breach by ABCO of Section 6.1.1, and Evolent shall be entitled to (i) injunctive relief to prevent breaches of Section 6.1.1, (ii) specific performance of this Agreement, and (iii) any other remedies provided by Law or equity, including without limitation an award for damages.
14. MISCELLANEOUS PROVISIONS.
14.1 Good Faith and Mutual Agreement: Unless otherwise expressly stated in such provision, if a provision in this Agreement calls for the consent of a Party or the mutual agreement of the Parties, the Parties agree that each will act in good faith, will not unreasonably withhold their consent and that deference shall be given to the other Party’s reasonable business requirements, and the requirements of the Parties’ respective regulators and internal controls procedures.
14.2 Independent Contractor: The relationship of ABCO to Evolent shall at all times be that of an independent contractor. Nothing in this Agreement shall be construed to create any partnership, association, joint venture, or employment between the Parties. Each Party shall have the sole and exclusive control over the labor and employee relations policies and policies relating to wages, hours, working conditions, benefits, or other conditions of its personnel and shall be responsible and liable for the acts and omissions of its employees, agents and contractors.
14.3 Assignability: Evolent has entered into this Agreement because of the expertise of ABCO, and ABCO understands that the obligations of ABCO are personal to ABCO and may not be assigned to any other company, partnership or individual without the express written consent of Evolent; provided, however, that no consent shall be required if an assignment is made in connection with a sale of all or substantially all of ABCO’s assets or stock, or in connection with a merger or Change of Control. Evolent may assign this Agreement (including the licenses granted pursuant to this Agreement) to any Affiliate of Evolent as part of an internal reorganization or in connection with a sale of substantially all of its assets or stock, or in connection with a merger or Change of Control.
14.4 Governing Law and Jurisdiction: This Agreement shall be governed by and construed and enforced in accordance with the Laws of the Commonwealth of Pennsylvania, without regard to that state or any other state’s conflicts of law rules. Each Party irrevocably consents to the personal jurisdiction of the state and federal courts located in Wilmington, Delaware for any suit or action arising from or related to this Agreement.
14.5 Force Majeure: Neither Party shall be deemed in default of this Agreement to the extent that performance of their obligations or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, act of government, or any other cause beyond the control of such Party, provided that such Party gives the other Party written notice thereof promptly and, in any event, within fifteen (15) days of discovery thereof, and uses its commercially reasonable efforts to cure any such breach.
14.6 Entire Agreement: This Agreement and its exhibits, schedules, and attachments constitute the entire understanding between the Parties with respect to the subject matter hereof and supersede all prior written or oral representations with respect to the subject matter hereof. This Agreement may not be modified, amended, or otherwise changed in any manner except by a written instrument executed by the Party against whom enforcement is sought.
14.7 Cumulative Remedies: Except as expressly provided in this Agreement, (a) remedies for breach are cumulative and may be exercised separately or concurrently, (b) the exercise of one remedy is not an election of that remedy to the exclusion of others, and (c) the provision for any remedy in this Agreement shall not affect remedies otherwise available at Law or in equity.
14.8 No Third Party Beneficiaries: The Parties do not intend that this Agreement creates any right or cause of action in or on behalf of any Person other than Evolent and ABCO.
14.9 Headings: Section headings have been included in this Agreement merely for convenience of reference. They are not to be considered part of, or to be used in interpreting this Agreement.
14.10 Binding Effect: The covenants and conditions contained herein will apply to and bind the successors, representatives, and permitted assigns of the Parties.
14.11 Expenses: Each Party shall be responsible for its own legal, accounting and other transaction costs relating to the transactions contemplated in this Agreement.
14.12 Notices: All notices required to be given hereunder shall be in writing and given hereunder, as elected by the Party giving notice, as follows: (a) by personal delivery, (b) sent by overnight courier with confirmation of receipt, or (c) dispatched by certified or registered mail, return receipt requested, postage prepaid, addressed to the Parties as follows.
If to Evolent: Evolent, Inc.
800 N. Glebe Road, Suite 500
Arlington, VA 22203
Attention: President
Morgan Lewis & Bockius, LLP
225 Franklin Street
Boston, MA 02110
Attention: Mark B. Stein, Esq.
Fax No.: (617) 341-7701
If to ABCO: The Advisory Board Company
2445 M St. NW
Washington, DC 20037
Attention: General Counsel
Notice shall be deemed given (a) on the date of receipt if delivered personally; (b) on the business day following delivery of such notice to the overnight courier; or (c) three (3) business days after deposit in the mail in accordance with the foregoing. Either Party may change the address to which to send notices by notifying the other Party of such change of address in writing in accordance with the foregoing.
14.13 Press Releases: No press releases or other public announcements concerning the transactions contemplated by this Agreement shall be made by ABCO or Evolent without the prior written consent of both Parties; provided, however, that nothing herein shall prevent a Party from supplying such information or making statements as required by governmental authority or in order for a Party to satisfy its legal obligations (prompt notice of which shall in any such case be given to the other Party).
14.14 Severability: Any terms or provisions of this Agreement that shall prove to be invalid, void or illegal shall in no way affect, impair, or invalidate any other term or provision herein and such remaining terms and provisions shall remain in full force and effect provided that its general purposes are still reasonably capable of being effected. All such terms or provisions which are determined by a court of competent jurisdiction or other dispute resolution proceeding to be invalid, void or illegal shall be construed and limited so as to allow the maximum effect permissible by Law.
14.15 Waiver: The waiver by either Party to this Agreement of any one or more defaults, if any, on the part of the other, shall not be construed to operate as a waiver of any other or future defaults under the same or different terms, conditions or covenants contained in this Agreement.
IN WITNESS WHEREOF, the Parties have executed this Agreement effective as of the date first written above.
THE ADVISORY BOARD COMPANY EVOLENT HEALTH, INC.
/s/ Evan Farber
By: Evan Farber By:
Its: General Counsel Its:
[Signature Page to Amended and Restated Services, Reseller and Non-Competition Agreement]
IN WITNESS WHEREOF, the Parties have executed this Agreement effective as of the date first written above.
THE ADVISORY BOARD COMPANY EVOLENT HEALTH, INC.
/s/ Frank Williams
By: By: Frank Williams
Its: Its: CEO
| Entailment |
622_nda-4 | 622_nda-4_0 | Q: Receiving Party shall not use any Confidential Information for any purpose other than the purposes stated in Agreement.
Text: Exhibit 10.16
AMENDED AND RESTATED
SERVICES, RESELLER AND NON-COMPETITION AGREEMENT
THIS AMENDED AND RESTATED SERVICES, RESELLER AND NON-COMPETITION AGREEMENT (this “Agreement”) is made and entered into effective as of June 27, 2013 (the “Effective Date”) by and between The Advisory Board Company, a Delaware corporation (“ABCO”), and Evolent Health, Inc. (f/k/a VPHealth, Inc.), a Delaware corporation (“Evolent”), (each, a “Party”, and collectively, the “Parties”).
RECITALS
WHEREAS, ABCO and Evolent entered into a Services, Reseller and Non-Competition Agreement (the “Original Agreement”), effective as of August 31, 2011 (the “Original Effective Date”);
WHEREAS, since entering into the Original Agreement, Evolent and ABCO have continued to explore ways to improve the efficiency and implementation of their relationship; and
WHEREAS, as a result of the foregoing efforts, the Parties have agreed to amend and restate the Original Agreement as set forth in this Agreement.
NOW, THEREFORE, in consideration of the above recitals, the terms and conditions hereinafter set forth, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto agree as follows:
1. DEFINITIONS. For purposes of this Agreement:
1.1 “ABCO Restricted Products and Services” means (a) care management services including, but not limited to, traditional disease management services, direct patient outreach and other service-based care management offerings (e.g., readmissions management teams, nurse call centers, on-site care management teams); (b) care management workflow software designed for and used by provider-owned payor organizations or other entities intending to conduct active care management campaigns targeted at managing population health/longitudinal outcomes (i.e, solutions that are the same as or substantially similar to (i.e. functionality that is redundant in substantial and material respects with) HealthPlaNet); (c) services primarily intended to support cost reduction and benefit changes for health system employees; (d) consulting services comparable and competitive with blueprint consulting services offered by Evolent as of the Effective Date (“Blueprint Services”), (e) Exclusive TPA Services or (f) Crimson Care Registry products. For the avoidance of doubt, Restricted Products and Services does not include behavioral health-related services or software (e.g., Askesis Development Group software), services similar to those offered by UPMC WorkPartners (e.g., “Take-a-Healthy-Step” or similar health and wellness programs, occupational medicine, on-site clinic implementation and administration, employee assistance services, absence management or workers’ compensation services), or software or solutions similar to those offered by EBenefits Solutions, LLC.
1.2 “Active Sales Process”, with respect to any Person as of any date on which Evolent proposes to add such Person to the list of Evolent Top Prospects, means such Person (a) is not an Evolent Client as of such date and (b) either (i) has purchased ABCO Restricted Products and Services from ABCO prior to such date or (b) was engaged in active discussions with ABCO about acquiring ABCO Restricted Products and Services (including, but not limited to, a review of the applicable offering of ABCO Restricted Products and Services) as of such date.
1.3 “Affiliate” means any Person which Controls, is Controlled by, or is in common Control with, another Person.
1.4 “Business Plan” has the meaning set forth in that certain Intellectual Property License and Data Access Agreement between the Parties.
1.5 “Change of Control” with respect to any entity means a transaction or series of related transactions in which a Person, or a group of related Persons, acquires from stockholders of the subject entity, the entity’s shares representing more than fifty percent (50%) of the outstanding voting power of such entity.
1.6 “Confidential Information” means any and all technical and non-technical information, whether conveyed verbally, in writing, electronically or by any other means, including, but not limited to, trade secrets, source code, technology, know-how and proprietary information, techniques, plans or any other information relating to any research project, analysis, work in process, future development, scientific, engineering, marketing or business plans or financial, contractual or personnel matters relating to either Party or its present or future products, services, sales, suppliers, identity of and information relating to customers and prospective customers, customer or prospect list, prospective employees, investors or affiliates or other proprietary information disclosed or otherwise supplied in confidence by either Party to the other, to the extent that such information is provided pursuant to this Agreement by one Party to the other Party and is marked “confidential” or “proprietary” or that should be reasonably understood by the Receiving Party (based on the nature of the information or the context in which the information is disclosed) should be considered confidential. Confidential Information will not include information to the extent that: (a) such information is or becomes publicly available other than through any act or omission of either Party in breach of this Agreement; (b) such information was received by the Receiving Party, other than under an obligation of confidentiality, from a third party who had no obligation of confidentiality to the other Party; (c) such information was in the possession of the Receiving Party at the time of the disclosure or was independently developed by the Receiving Party, as reflected by the Receiving Party’s internal, written and dated documentation; or (d) an applicable regulation, court order or other legal process requires the disclosure of such information, provided that prior to such disclosure the Disclosing Party will give notice to the other Party so that the other Party may take reasonable steps to oppose or limit such disclosure, so that the Disclosing Party does not disclose any more information than necessary to comply with such legal process. The burden of proof that Confidential Information falls into any one of the above exemptions will be borne by the Party claiming such exemption with documentation or other credible evidence.
1.7 “Control” as used with respect to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities, by agreement or otherwise.
1.8 “Evolent Clients” means entities under a current contract with Evolent for an implementation and/or long-term services contract. 1.9 “Evolent Top Prospects” means, as of any date, up to twenty (20) potential Evolent customers in the Evolent sales pipeline identified by Evolent that are not Evolent Clients as of such date, and (a) are engaged in active discussions with Evolent regarding purchasing Evolent products and services and/or (b) are under a current contract with Evolent for Blueprint Services or other services that do not constitute implementation or long-term services; provided, however, that (i) the list of such potential Evolent customers may be updated by Evolent on a quarterly basis, and ABCO shall have the opportunity upon receipt of each such quarterly update to notify Evolent if any of the Persons added to such list are in an Active Sales Process with ABCO and shall therefore be removed from such list, and (ii) no Person shall remain on the list of Evolent Top Prospects for more than (x) twelve (12) consecutive months, in the case of potential Evolent customers without a signed agreement with Evolent, or (y) twenty-four (24) consecutive months, in the case of potential Evolent Clients that signed an agreement for Blueprint Services with Evolent before or within twelve (12) months of being added to the list of Evolent Top Prospects.
1.10 “Exclusive TPA Services” means certain services as set forth on Schedule 1 of the UPMC Reseller Agreement (as in effect on the Effective Date), to the extent that UPMC Health Plan, Inc., a Pennsylvania nonprofit corporation (“UPMC”), has the exclusive right to provide such services to Evolent, for resale by Evolent to its customers.
1.11 “Disclosing Party” means a Party that provides Confidential Information to the other Party, or the other Party’s Affiliates.
1.12 “Governmental Authority” means any federal, state, municipal, local, territorial, or other governmental department, regulatory authority, judicial or administrative body, whether domestic, foreign or international.
1.13 “Law” means all international, federal, country, state, provincial, local and other laws, rules and regulations, declaration, decree, directive, legislative enactment, order, code, ordinance, regulation, rule or other binding restriction of or by any Governmental Authority, as the same are promulgated, supplemented or amended from time to time.
1.14 “Loss” individually, and collectively, “Losses” means all claims, liabilities, obligations, losses, costs, expenses (including, without limitation, legal, accounting and similar expenses), litigation, proceedings, fines, taxes, levies, imposts, duties, deficiencies, assessments, charges, penalties, allegations, demands, damages (including, but not limited to, actual, punitive or consequential, foreseen or unforeseen, known or unknown, fixed or contingent, and matured or unmatured), civil and criminal violations of Law, settlements and judgments of any kind or nature whatsoever.
1.15 “Person” means any individual, corporation, partnership, firm, joint venture, association, limited liability company, limited liability partnership, joint-stock company, trust, joint venture, unincorporated organization, governmental, judicial or regulatory body, business unit, division or any other business entity, organization or Governmental Authority.
1.16 “Receiving Party” means a Party that receives Confidential Information from the other Party or the other Party’s Affiliates.
1.17 “Statement of Work” or “SOW” means an agreement by and between ABCO and Evolent that contains the detailed description of services, scope, specifications, pricing, implementation plan, timetables, milestones, and other terms and conditions for each procurement of services, as applicable.
1.18 “UPMC Reseller Agreement” means that certain Second Amended and Restated Reseller, Services and Non-Competition Agreement between UPMC and Evolent dated as of [the Effective Date].
2. SERVICES TO BE PROVIDED BY ABCO.
2.1 General Services:
2.1.1 Minimum Purchase. The Parties hereby acknowledge and agree that Evolent has purchased from ABCO a minimum of Two Hundred Thousand Dollars ($200,000) of services (as described in Section 2.2.1) (the “Original Minimum Purchase”) for delivery between the Original Effective Date and the first anniversary thereof.
2.1.2 Statements of Work. The specific description, price, service levels (if applicable) and other project, service, and/or customer-specific terms for a particular service that may be provided by ABCO to Evolent (each, a “Service”, and collectively, the “Services”) shall be set forth in a Statement of Work that will be created on a project by project basis.
2.2 Right of First Offer and Process for Invoking:
2.2.1 Applicable Services. Throughout the Term, ABCO shall have the right of first offer to provide the following services to Evolent and Evolent’s customers:
(a) Physician practice management consulting and other physician practice management services;
(b) Physician incentive design services;
(c) Medical home development consulting services; and
(d) Performance analytics shared with physicians with the intent to improve outcomes.
2.2.2 Process for Exercising Right of First Offer. Evolent shall notify ABCO in writing in the event Evolent desires to receive any of the above services (“First Offer Services”). ABCO shall have a period of thirty (30) days (“First Offer Services Evaluation Period”) within which to conduct its evaluation and diligence with respect to providing such First Offer Services. Evolent shall cooperate with ABCO and provide reasonable assistance and information to ABCO to enable ABCO to conduct its evaluation. Within five (5) business days after the expiration of such First Offer Services Evaluation Period, ABCO shall notify Evolent in writing whether or not it wishes to provide such services to Evolent. If ABCO elects to provide such First Offer Services, Evolent agrees to engage in good faith negotiations with ABCO, on an exclusive basis for a period of sixty (60) days, regarding the specific terms covering such First Offer Services.
2.3 Failure to Execute a Service Agreement for the VBC Innovation Center: The Parties acknowledge and agree that it was their intent as of the Original Effective Date to enter into a service agreement under which Evolent would engage ABCO to provide certain consulting, development and support services in connection with the creation, launch, implementation and ongoing support of a Value-Based Care Innovation Center (the “VBC Innovation Center”), in consideration for which Evolent would pay ABCO a fixed fee of Eight Hundred Thousand Dollars ($800,000) per year (“Fixed Fee”) for each of the first two (2) years of the term of such VBC Innovation Center service agreement. The Parties acknowledge and agree that, notwithstanding the fact that they negotiated with diligence and in good faith the specific terms and conditions of such service agreement, the Parties were unable to reach an agreement with respect to the VBC Innovation Center. Accordingly, the Original Minimum Purchase is increased to One Million Two Hundred Thousand Dollars ($1,200,000) (the “Minimum Purchase”) as follows: (a) between the Original Effective Date and the second anniversary thereof, Evolent shall have purchased from ABCO a minimum of Seven Hundred Thousand Dollars ($700,000) of services for delivery on or prior to such second anniversary of the Original Effective Date), and (b) inclusive of the purchases described in clause (a), between the Original Effective Date and the third anniversary thereof, Evolent shall have purchased from ABCO a minimum of One Million Two Hundred Thousand Dollars ($1,200,000) of services for delivery on or prior to such third anniversary of the Original Effective Date); provided that, for purposes of this sentence, “services” shall include consulting, software, professional or analytic services provided from time to time by ABCO to Evolent (other than services in connection with the provision of any office space by or on behalf of ABCO to Evolent) or, pursuant to a joint written proposal by ABCO and Evolent, to any Evolent Client.
2.4 Reservation of Rights: For the avoidance of doubt, Evolent is not precluded from offering and providing services directly to its customers, subject (a) to (i.e., after ABCO has had the full opportunity to exercise) ABCO’s right of first offer to provide any First Offer Services in accordance with Section 2.2) and (b) to Evolent’s compliance with its non-competition obligations as set forth in Section 6.2.
2.5 Designation of Relationship Managers: In order to support the launch and ongoing success of the exclusive reseller relationship between ABCO and Evolent, each Party agrees to designate a senior level individual who will serve as the primary liaison and “go to” contact and relationship manager for such Party (each, a “Relationship Manager”). Each Party’s Relationship Manager’s role and responsibilities would include: (a) facilitating day-to-day communications between the Parties regarding customer-facing activities, such as marketing, promotional and sales activities and preparing and submitting bids, proposals, responses to requests for proposals, fee estimates, Statements of Work and project plans; (b) receiving and submitting requests between the Parties for information and/or assistance; (c) overseeing the efficient knowledge transfer and flow of information between the Parties; (d) facilitating communications between the appropriate individuals within Evolent and ABCO, with respect to product and service offering development; and (e) providing the first level of performance review or escalation in the event of a Dispute as provided in Section 13. The Relationship Managers will meet regularly, but no less frequently than monthly, as reasonably necessary, to maintain a good working relationship between the Parties. Each Party may change its Relationship Manager by giving the other Party reasonable notice as long as the change is implemented in a manner that does not cause any significant disruption to each Party’s business operations and business relationship.
3. FEES; PAYMENT TERMS; SHORTFALL.
3.1 Fees; Timing of Payments: Evolent shall pay ABCO the applicable fees for the Services performed by ABCO pursuant to a Statement of Work, as follows: (a) unless the Parties otherwise agree in writing, a deposit of 50% of the total fees for the particular project shall be paid upon signing of the Statement of Work; (b) ABCO will submit an invoice to Evolent for the balance upon completion of the work; and (c) Evolent shall pay ABCO for such invoiced amount within thirty (30) days after receipt of such invoice.
3.2 Minimum Purchase and Shortfall: Evolent agrees to pay ABCO the Minimum Purchase. If the aggregate amount of Services actually procured by Evolent from ABCO is not equal to or greater than (a) Seven Hundred Thousand Dollars ($700,000) of services for delivery on or prior to the second anniversary of the Original Effective Date or (b) inclusive of the purchase described in clause (a), the Minimum Purchase of services for delivery on or prior to the third anniversary of the Original Effective Date, Evolent shall pay ABCO the amount of the shortfall (i.e., the difference between Seven Hundred Thousand Dollars ($700,000) or the Minimum Purchase amount, as applicable, less the sum of: (a) the aggregate fees for the actual amount of Services procured; and (b) any Credits (as provided in the next sentence) (the “Shortfall”), if any, on or before August 31, 2013 or August 31, 2014, as applicable. In the event that ABCO refuses or fails, without reasonable cause, to provide any of the Services requested by Evolent (provided the scope of the Services requested is within the scope customarily provided by ABCO), the fees that would otherwise have been applicable had ABCO agreed to provide such Services would count as a “Credit”. As of the date hereof, no such Credits have accrued.
4. TERM AND RENEWAL. The initial term of this Agreement shall commence on the Effective Date and unless sooner terminated in accordance with the terms hereof, shall continue until August 31, 2016 (“Initial Term”). Thereafter, this Agreement shall automatically be renewed for another five-year term (“Renewal Term”) unless either Party elects to terminate this Agreement by providing the other Party with written notice of termination one hundred eighty (180) days prior to the expiration of the current term. (“Initial Term” and “Renewal Term” collectively, the “Term”).
5. REFERRAL FEES, SOLICITATION AND COMPETITION AND POST-CLOSING SERVICES.
5.1 Referral Fees:
5.1.1 During the Term, ABCO will pay Evolent a sales referral fee for any sale made by ABCO that resulted from a “net” new sale from a new customer that was not already in ABCO’s sales pipeline (i.e., a “warm lead”) or a then-current customer of ABCO generated directly by Evolent’s efforts and without any assistance from any ABCO employee or representative (including any Evolent employee that serves on the Board of Directors of ABCO), equal to 5% of the total ABCO revenue from the new customer during the initial twelve (12) months of services under the services agreement with such new customer.
5.1.2 During the Term, Evolent will pay ABCO a sales referral fee for any sale made by Evolent that resulted from a “net” new sale from a new customer that was not already in Evolent’s sales pipeline (i.e., a “warm lead”) or a then-current customer of Evolent generated directly by ABCO’s efforts and without any assistance from any Evolent employee or representative (including any ABCO employee that serves on the Board of Directors of Evolent), in accordance with the following terms:
(a) ABCO will receive a one-time referral fee for any “employee health” diagnostic, consulting or broker services provided by Evolent to a Covered Health System, equal to the lesser of $20,000 or 5% of the total Evolent revenue from the Covered Health System during the initial twelve (12) months of services under the service agreement with such Covered Health System.
(b) ABCO will receive $50,000 per year for three (3) years for each health system joining Evolent as an Employee Health Platform Customer. An “Employee Health Platform Customer” is defined as a health system purchasing diagnostic/consulting services and ongoing medical management/health plan services (i.e., care management, HealthPlaNet care management application, and the TPA platform, etc.).
(c) ABCO will receive $100,000 per year for three (3) years for a health system joining Evolent as a Platform Health Plan Customer. A “Platform Health Plan Customer” is defined as a health system purchasing ongoing medical management services, ongoing health plan outsourcing services (i.e., TPA) and health plan management services for purposes of a licensed insurance entity with at least fifty thousand (50,000) lives (beyond the employee population).
(d) With the exception of making the introduction (either through an email or an in-person meeting) (to generate the “warm lead”), ABCO would not be expected to perform any actual duties or incur actual cost to receive a referral fee.
(e) The annual referral fees for each referral would be capped at the lesser of (x) 5% of annual revenue generated by Evolent for the respective customer and (y) the $50,000 or $100,000 figures described above, as applicable.
6. SOLICITATION AND COMPETITION.
6.1 Scope:
6.1.1 Throughout the Term, ABCO agrees not to offer any ABCO Restricted Products and Services to (a) any Evolent Clients or (b) any Evolent Top Prospects; provided, however, that ABCO shall not be restricted from making any such offer to any Evolent Top Prospect or Evolent Client with whom ABCO was, at the time such Person was identified as an Evolent Top Prospect or became an Evolent Client, engaged in an Active Sales Process. The foregoing restrictions shall not apply in the event of a Change of Control of Evolent or in the event that ABCO ceases to be a shareholder of Evolent.
6.1.2 None of the foregoing would prohibit ABCO from:
(a) Marketing, offering, licensing or selling versions of any of its Crimson Population Risk Management products, or the successors to any such products, provided that such products, or the successors to any such products, are not the same as or substantially similar to (i.e., includes functionality that is redundant in substantial and material respects with) HealthPlaNet as it exists as of the Effective Date.
(b) Supporting employers with care management related best practices and research.
(c) Offering traditional “dedicated advisor” support in conjunction with ABCO’s traditional business intelligence offerings.
(d) Marketing, offering, licensing or selling its employer health product.
(e) Providing physician management consulting and other physician management services.
6.2 Restrictions Relating to Certain ABCO Products and Services: Evolent shall not, until the earlier of (x) ABCO’s ceasing to be a shareholder of Evolent or (y) the seventh (7 ) anniversary of the date of this Agreement, promote, market, provide, offer or sellth (a) unbundled software applications, software tools or other similar technologies (including, without limitation, software as a service, analytics technology or data services) (each, a “Technology Solution”), (b) consulting services that are not intended to lead to or be a part of a Blueprint Services engagement, implementation contract and/or long-term services contract, or (c) any best practices membership programs or unbundled or bundled physician practice management and other physician practice management consulting services, in each case referred to in this clause (c) that are substantially similar to, or that are competitive with, ABCO’s best practices membership programs or physician practice management or other physician practice management consulting services that are offered by ABCO as of the date first written above. For the avoidance of doubt, “unbundled” means on a stand-alone basis, instead of “bundled”, which contemplates that the Technology Solution is both (i) offered as part of a “packaged”, integrated offering, in conjunction with other Evolent products or services that are not Technology Solutions (and not only services that constitute customary software, data and end user support-related services), such as the Exclusive TPA Services, and (ii) incidental to the provision of such other Evolent products or services. Notwithstanding any other provision hereof, the foregoing restrictions in this Section 6.2 shall survive a Change of Control of Evolent for seven (7) years from the date of this Agreement; provided, however, that prior to the seventh (7 ) anniversary of the date of thisth Agreement, the acquiring party in a Change of Control of Evolent shall be not be subject to the foregoing restrictions with respect to any Technology Solutions or consulting services, in each case, that are unrelated to the Evolent assets acquired.
6.3 Non-Solicitation or Hiring: During the Term and for a period of eighteen (18) months thereafter, Evolent shall not solicit or hire any of ABCO’s employees without ABCO’s prior written consent.
7. EXCLUSIVE RESELLER RIGHTS FOR FUTURE PRODUCTS.
In the event that Evolent creates a discrete or segregable product or service that can be sold to healthcare providers, Evolent shall notify ABCO in writing of such new offerings (“New Products”). ABCO shall have a period of ninety (90) days (“New Products Evaluation Period”) within which to conduct its evaluation and diligence with respect to providing such New Products. Evolent shall cooperate with ABCO and provide reasonable assistance and information to ABCO to enable ABCO to conduct its evaluation. Within five (5) business days after the expiration of such New Products Evaluation Period, ABCO shall notify Evolent in writing whether or not it wishes to have the right to resell such New Products. If ABCO elects to resell such New Products, Evolent and ABCO agree to negotiate in good faith on an exclusive basis for one hundred twenty (120) days the terms of a reseller agreement, under which ABCO would be the exclusive distributor (in addition to Evolent) of such New Products.
8. CONFIDENTIALITY.
8.1 Confidential Information: ABCO acknowledges that in connection with its rights and obligations under this Agreement it may gain access to the Confidential Information of Evolent and its customers and Affiliates. Evolent acknowledges that in connection with its rights and obligations under this Agreement, it may gain access to the Confidential Information of ABCO and its customers and Affiliates.
8.2 Non-Disclosure: The Receiving Party may disclose the Disclosing Party’s Confidential Information strictly on a need-to-know basis to only those personnel, including employees of the Receiving Party’s contractors, who require access to the Disclosing Party’s Confidential Information in order to perform or derive benefit from the Services or otherwise meet its obligations under this Agreement. The Receiving Party agrees: (a) to hold the Disclosing Party’s Confidential Information in strict confidence, using the same degree (but no less than a reasonable degree) of care and protection that it exercises with its own Confidential Information of a similar nature; (b) not to directly or indirectly disclose or otherwise make available any Confidential Information of the Disclosing Party to a third party; and (c) not to copy or use the Disclosing Party’s Confidential Information for any purpose other than as necessary to fulfill the Receiving Party’s obligations or exercise its rights under this Agreement. Each Receiving Party is responsible for ensuring that its employees, agents and contractors strictly abide by the requirements of confidentiality and restrictions on use as provided in this Section 8.2 and shall be liable to the Disclosing Party for any acts or omissions of its employees, agents and independent contractors relating to the Disclosing Party’s Confidential Information. The Receiving Party is allowed to disclose Confidential Information of the Disclosing Party to the extent required by Law or by the order or a court of similar judicial or administrative body with jurisdiction, provided that the Receiving Party notifies the Disclosing Party of such required disclosure promptly and in writing and cooperates with the Disclosing Party, at the Disclosing Party’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure. The provisions of this Section 8 shall survive beyond the expiration or termination of this Agreement.
8.3 Injunctive Relief: The Parties acknowledge and agree that monetary damages may be inadequate to compensate for a breach of the provisions contained in this Section 8 or other confidentiality provisions of this Agreement. In the event of such breach, the injured Party shall be entitled to seek injunctive relief (without the need to post bond) and any and all other remedies available at Law or in equity. This Section 8.3 in no way limits the liability or damages that may be assessed against a Party in the event of a breach by the other Party of any of the provisions of this Section 8.
8.4 Residuals: Notwithstanding anything in this Section 8 to the contrary, subject to any applicable statutory intellectual property rights applicable to patents, trademarks or copyrights, either Party may use “Residuals” for any purpose, including without limitation, for use in development, manufacture, promotion, sale and maintenance of its products and services; provided, however, that this right to Residuals does not represent a license under any patents, copyrights or trademarks of the Disclosing Party. The term “Residuals” means any information that is retained in the unaided memories of the Receiving Party’s employees who have had access to the Disclosing Party’s Confidential Information pursuant to the terms of this Agreement.
9. WARRANTIES.
9.1 Authority/No Conflict: ABCO represents and warrants that (a) it has the power and authority to enter into and perform its obligations under this Agreement without conflict with, default under, or violation of any Law, regulation, or agreement binding upon it, and (b) this Agreement has been duly authorized by all necessary organizational action, and duly and validly executed and delivered by it, and constitutes its legally valid and binding obligation, enforceable in accordance with its terms.
9.2 Services: ABCO represents, warrants and covenants that the Services provided under this Agreement will be performed in a professional and workmanlike manner.
9.3 Compliance with Laws/Approvals: Each of ABCO and Evolent shall comply in all material respects with all Laws and regulations applicable to ABCO or Evolent, as applicable, in performing its obligations under this Agreement. To the extent applicable, ABCO shall be responsible for obtaining all necessary permits, licenses, and consents, including governmental approvals, required of ABCO and its contractors in connection with the performance of its obligations under this Agreement, and Evolent shall be responsible for obtaining all necessary permits, licenses, and consents, including governmental approvals, required of Evolent and its contractors in connection with the performance of its obligations under this Agreement.
9.4 Limitations of Warranty: EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, ABCO MAKES NO OTHER WARRANTY OR REPRESENTATION, ORAL, WRITTEN, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE SERVICES, INCLUDING WITHOUT LIMITATION, THEIR QUALITY, PERFORMANCE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, UNINTERRUPTED OR ERROR-FREE OPERATION OR OTHERWISE HEREUNDER. The disclaimer of warranties and limitations set forth in this Agreement constitute an essential part of this Agreement.
10. INDEMNIFICATION.
10.1 IP Indemnification: ABCO shall defend, indemnify and hold harmless Evolent and its Affiliates (other than ABCO), customers, and their respective officers, directors and employees from and against any Losses resulting from a claim that the Services provided by ABCO under this Agreement infringes or misappropriates a third party’s intellectual property rights. ABCO shall also use commercially reasonable efforts to modify the allegedly infringing Services to make it non-infringing, procure a license from the third party claiming infringement to permit Evolent to continue to use the Services, or provide Evolent with functionally equivalent and non-infringing Services. THIS SECTION 10.1 SETS FORTH ABCO’S SOLE AND EXCLUSIVE LIABILITY, AND EVOLENT’S SOLE AND EXCLUSIVE REMEDY, FOR ALLEGATIONS OR CLAIMS OF INFRINGEMENT OF THIRD PARTY RIGHTS OF ANY KIND ASSERTED AGAINST EVOLENT, ITS AFFILIATES (OTHER THAN ABCO), CUSTOMERS AND THEIR RESPECTIVE OFFICERS, DIRECTORS AND EMPLOYEES. ABCO shall not be obligated to indemnify Evolent, its Affiliates, customers, and their respective officers, directors and employees for infringement or misappropriation claims to the extent such claims arise out of use by Evolent or its customers of any of the Services in a manner other than as contemplated by the Parties under this Agreement.
10.2 ABCO’s Indemnification: ABCO hereby agrees to indemnify, defend, and hold Evolent and its Affiliates (other than ABCO), and all of their respective directors, officers, members, managers, partners, employees, agents, successors and assigns, harmless from and against any Losses arising from or related to: (a) the material breach of this Agreement, including any or all SOWs, by ABCO or its personnel (including contractors); (b) breach of any of ABCO’s representations, warranties, and covenants in this Agreement; or (c) negligence or willful misconduct by ABCO or its personnel (including contractors).
10.3 Evolent’s Indemnification: Evolent hereby agrees to indemnify, defend, and hold ABCO and its Affiliates (other than Evolent), and all of their respective directors, officers, members, managers, partners, employees, agents, successors and assigns, harmless from and against any Losses arising from or related to: (a) the material breach of this Agreement, including any or all SOWS, by Evolent or its personnel (including contractors); (b) breach of any of Evolent’s representations, warranties and covenants in this Agreement; or (c) negligence or willful misconduct by Evolent or its personnel (including contractors).
10.4 Indemnification Procedure:
10.4.1 Notice of Claim. Any Party seeking indemnification hereunder (the “Indemnitee”) shall notify the Party liable for such indemnification (the “Indemnitor”) in writing of any event, omission or occurrence that the Indemnitee has determined has given or could give rise to Losses that are indemnifiable hereunder (such written notice being hereinafter referred to as a “Notice of Claims”). Such Notice of Claims shall be given promptly after the Indemnitee becomes aware of its own claim or that of a third party; provided that the failure of any Indemnitee to give notice as provided in this Section 10.4.1 shall not relieve the Indemnitor of its obligations under this Section 10. A Notice of Claims shall specify in reasonable detail the nature and any particulars of the event, omission, or occurrence giving rise to a right of indemnification. The Indemnitor shall satisfy its obligations hereunder, as the case may be, within thirty (30) days of its receipt of a Notice of Claims.
10.4.2 Process. With respect to any third party claim, demand, suit, action, or proceeding that is the subject of a Notice of Claim, the Indemnitor shall, in good faith and at its own expense, defend, contest, or otherwise protect against any such claim, demand, suit, action, or proceeding with legal counsel of its own selection (and reasonably acceptable to the Indemnitee). The Indemnitee shall have the right, but not the obligation, to participate, at its own expense, in the defense thereof through counsel of its own choice and shall have the right, but not the obligation, to assert any and all cross claims or counterclaims it may have. So long as the Indemnitor is defending in good faith any such third party claim, demand, suit, action or proceeding, the Indemnitee shall at all times cooperate, at its own expense, in all reasonable ways with, make its relevant files and records available for inspection and copying by, and make its employees available or otherwise render reasonable assistance to, the Indemnitor. In the event that the Indemnitor fails to timely defend, contest or otherwise protect against any such third party claim, demand, suit, action, or proceeding, the Indemnitee shall have the right, but not the obligation, to defend, contest, assert cross claims or counterclaims, or otherwise protect against, the same and may make any compromise or settlement thereof and be entitled to all amounts paid as a result of such third party claim, demand, suit, or action or any compromise or settlement thereof. The Indemnitor will not consent to the entry of any judgment or enter into any settlement with respect to any such third party claim, demand, suit, action or proceeding without the prior written consent of the Indemnitee, which will not be unreasonably withheld, and provided that no settlement shall require the Indemnitee to admit liability, or perform or become subject to additional obligations thereunder.
11. LIMITS OF LIABILITY. EXCEPT WITH RESPECT TO OR BREACH BY EITHER PARTY OF THE OTHER PARTY’S CONFIDENTIAL INFORMATION UNDER SECTION 8,
NEITHER EVOLENT NOR ABCO SHALL BE LIABLE FOR, NOR WILL THE MEASURE OF DAMAGES INCLUDE, ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OR AMOUNTS INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF INCOME, PROFITS, OR SAVINGS, LOSS OF DATA, OR COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES, ARISING OUT OF OR RELATING TO ITS PERFORMANCE UNDER THIS AGREEMENT UNDER ANY CAUSE OF ACTION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL EITHER PARTY’S LIABILITY EXCEED THE AMOUNT OF REVENUE ACTUALLY RECEIVED BY ABCO IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO THE CLAIM.
12. TERMINATION.
12.1 Termination for Cause: Either Party shall have the right to terminate this Agreement in the event the other Party materially violates a material provision of this Agreement and such violation is not cured or cannot be cured within thirty (30) days after written notice of such material violation.
12.2 Survival: The rights and obligations contained in Sections 1, 5 (with respect to Evolent’s payment obligations that may extend beyond the Term), 6.2, 6.3, 8, 9.4, 10, 11, 12.2, 13 and 14 shall survive any termination or expiration of this Agreement.
13. ESCALATION; DISPUTE RESOLUTION. Subject to the terms of Section 13.5, the procedures of this Section 13 will control the resolution of any and all disputes between the Parties including, without limitation, any dispute relating to disputed monies owing or breach of warranty (each, a “Dispute”). The Parties will seek to resolve each Dispute as follows:
13.1 First Level Performance Review: Each Party’s Relationship Manager will meet as often as will reasonably be required by either Party to review the performance of either Party under this Agreement and to resolve the Dispute. If these representatives are unable to resolve the Dispute within ten (10) business days after the initial request for a meeting, then the Parties will submit the Dispute to an executive level performance review as provided in Section 13.2 below.
13.2 Executive Level Performance Review: Face-to-face negotiations will be conducted by a senior executive officer of each Party (or such other executive as a Party may designate). If these representatives are unable to resolve the Dispute within five (5) business days after the Parties have commenced negotiations or ten (10) business days have passed since the initial request for a meeting at this level, then the Parties may jointly engage the services of a third-party mediator.
13.3 Arbitration: If the Parties are unable to resolve the Dispute through the alternative mechanisms described above, the Parties shall submit the Dispute for resolution through binding arbitration, except as otherwise provided in Section 13.5. The Parties agree and consent to such arbitration proceeding taking place in Wilmington, Delaware, and in accordance with the Commercial Arbitration Rules of the American Arbitration Association, except that discovery may be had in accordance with the Federal Rules of Civil Procedure. The Parties shall be permitted at least six (6) months from the date of the filing of the Arbitration Demand to conduct discovery. The arbitration proceedings shall be conducted by a panel of three (3) impartial arbitrators, with each Party selecting one (1) of the impartial arbitrators and those two (2) arbitrators then selecting the third impartial arbitrator, all such selections to be made through the procedures of the American Arbitration Association. At least one (1) arbitrator must be an attorney licensed under the Laws of Pennsylvania and at least one (1) arbitrator (may be the same Person as the Pennsylvania attorney) must have direct and substantial experience in the industry pertinent to the subject matter of the Dispute. Judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof; provided, however, in rendering its decision, the arbitrators shall be bound by the Laws of the Commonwealth of Pennsylvania (without regard to its conflicts of laws provisions) and by the terms and conditions of this Agreement setting forth the rights and responsibilities of the Parties. The decision of the arbitration panel shall be accompanied by a written opinion setting forth the factual and legal bases for the award. The arbitrators shall issue such written decision within thirty (30) days of the conclusion of the arbitration hearing. The arbitrators appointed hereunder shall not have the power to award punitive damages. Service of a petition to confirm the arbitration award may be made by United States mail, postage prepaid, or by any regularly conducted commercial express mail service, to the attorney for the Party or, if not so represented, to the Party at the address set forth herein, or to the Party’s last known business address. The prevailing Party in any action related to or arising under this Agreement shall be entitled to reasonable attorneys’ fees and costs.
13.3.1 For any Dispute in which the amount in controversy is at least One Million Dollars ($1,000,000), the following additional procedures apply:
(a) a certified court reporter shall transcribe the arbitration hearings; The Parties initially split the cost of the reporter, but such costs shall ultimately be awarded to the Party prevailing in the arbitration proceeding; and
(b) either Party may take an appeal from the final decision by making a written demand within twenty (20) days of the award.
13.3.2 Any such appeal shall be conducted as follows:
(a) such appeals are limited to issues of Law (i.e., the original award (1) contains material errors of Law such that the original award is not founded on any appropriate legal basis; (2) is based on factual findings clearly unsupported by the record; or (3) is subject to one or more grounds set forth in Section 10 of the Federal Arbitration Act or 42 Pa. C.S.A. §7341 for vacating an award);
(b) the Person hearing the appeal shall be a former federal judge mutually agreed to by the Parties or selected through the procedures of the American Arbitration Association. The former judge shall act as the appellate arbitrator;
(c) the submissions on appeal are limited to (1) the record of the arbitration, (2) a 30-page brief by the appellant, (3) a 30-page brief by the appellee and (4) a 10-page response by the appellant. The appellate arbitrator will set the dates for submission of the briefs. Oral argument may be heard at the discretion of the appellate arbitrator;
(d) the appellate arbitrator shall render a written decision within sixty (60) days of the final submission;
(e) during the pendency of the arbitration appeal, the Parties agree to suspend any running of the time to seek enforcement of the original award. The Parties also agree to waive any appeal to state or federal courts based on the grounds set forth in Section 10 of the Federal Arbitration Act for vacating an award and 42 Pa. C.S.A. § 7341;
(f) the appellate arbitrator must award costs and attorneys’ fees to the prevailing Party; and
(g) the decision of the appellate arbitrator shall be final.
13.4 Continued Performance: Each Party acknowledges that the timely and complete performance of its obligations pursuant to this Agreement is critical to the business and operations of the other Party. Accordingly, in the event of a Dispute, each Party shall continue to so perform all of its obligations under this Agreement, in good faith during the resolution of such Dispute unless and until (a) authority to stop doing so is granted or conferred by a court of competent jurisdiction or (b) this Agreement is terminated in accordance with the provisions hereof.
13.5 Equitable Relief: Notwithstanding anything contained in this Agreement to the contrary, the Parties will be entitled to seek injunctive relief, specific performance or other equitable relief whenever the facts or circumstances would permit a Party to seek equitable relief in a court of competent jurisdiction. Without limiting the generality of the foregoing, (a) Evolent agrees that there would be irreparable harm to ABCO in the event of any such breach by Evolent of Section 6.2 and ABCO shall be entitled to (i) injunctive relief to prevent breaches of Section 6.2, (ii) specific performance of this Agreement, and (iii) any other remedies provided by Law or equity, including without limitation an award for damages, and (b) ABCO agrees that there would be irreparable harm to Evolent in the event of any such breach by ABCO of Section 6.1.1, and Evolent shall be entitled to (i) injunctive relief to prevent breaches of Section 6.1.1, (ii) specific performance of this Agreement, and (iii) any other remedies provided by Law or equity, including without limitation an award for damages.
14. MISCELLANEOUS PROVISIONS.
14.1 Good Faith and Mutual Agreement: Unless otherwise expressly stated in such provision, if a provision in this Agreement calls for the consent of a Party or the mutual agreement of the Parties, the Parties agree that each will act in good faith, will not unreasonably withhold their consent and that deference shall be given to the other Party’s reasonable business requirements, and the requirements of the Parties’ respective regulators and internal controls procedures.
14.2 Independent Contractor: The relationship of ABCO to Evolent shall at all times be that of an independent contractor. Nothing in this Agreement shall be construed to create any partnership, association, joint venture, or employment between the Parties. Each Party shall have the sole and exclusive control over the labor and employee relations policies and policies relating to wages, hours, working conditions, benefits, or other conditions of its personnel and shall be responsible and liable for the acts and omissions of its employees, agents and contractors.
14.3 Assignability: Evolent has entered into this Agreement because of the expertise of ABCO, and ABCO understands that the obligations of ABCO are personal to ABCO and may not be assigned to any other company, partnership or individual without the express written consent of Evolent; provided, however, that no consent shall be required if an assignment is made in connection with a sale of all or substantially all of ABCO’s assets or stock, or in connection with a merger or Change of Control. Evolent may assign this Agreement (including the licenses granted pursuant to this Agreement) to any Affiliate of Evolent as part of an internal reorganization or in connection with a sale of substantially all of its assets or stock, or in connection with a merger or Change of Control.
14.4 Governing Law and Jurisdiction: This Agreement shall be governed by and construed and enforced in accordance with the Laws of the Commonwealth of Pennsylvania, without regard to that state or any other state’s conflicts of law rules. Each Party irrevocably consents to the personal jurisdiction of the state and federal courts located in Wilmington, Delaware for any suit or action arising from or related to this Agreement.
14.5 Force Majeure: Neither Party shall be deemed in default of this Agreement to the extent that performance of their obligations or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, act of government, or any other cause beyond the control of such Party, provided that such Party gives the other Party written notice thereof promptly and, in any event, within fifteen (15) days of discovery thereof, and uses its commercially reasonable efforts to cure any such breach.
14.6 Entire Agreement: This Agreement and its exhibits, schedules, and attachments constitute the entire understanding between the Parties with respect to the subject matter hereof and supersede all prior written or oral representations with respect to the subject matter hereof. This Agreement may not be modified, amended, or otherwise changed in any manner except by a written instrument executed by the Party against whom enforcement is sought.
14.7 Cumulative Remedies: Except as expressly provided in this Agreement, (a) remedies for breach are cumulative and may be exercised separately or concurrently, (b) the exercise of one remedy is not an election of that remedy to the exclusion of others, and (c) the provision for any remedy in this Agreement shall not affect remedies otherwise available at Law or in equity.
14.8 No Third Party Beneficiaries: The Parties do not intend that this Agreement creates any right or cause of action in or on behalf of any Person other than Evolent and ABCO.
14.9 Headings: Section headings have been included in this Agreement merely for convenience of reference. They are not to be considered part of, or to be used in interpreting this Agreement.
14.10 Binding Effect: The covenants and conditions contained herein will apply to and bind the successors, representatives, and permitted assigns of the Parties.
14.11 Expenses: Each Party shall be responsible for its own legal, accounting and other transaction costs relating to the transactions contemplated in this Agreement.
14.12 Notices: All notices required to be given hereunder shall be in writing and given hereunder, as elected by the Party giving notice, as follows: (a) by personal delivery, (b) sent by overnight courier with confirmation of receipt, or (c) dispatched by certified or registered mail, return receipt requested, postage prepaid, addressed to the Parties as follows.
If to Evolent: Evolent, Inc.
800 N. Glebe Road, Suite 500
Arlington, VA 22203
Attention: President
Morgan Lewis & Bockius, LLP
225 Franklin Street
Boston, MA 02110
Attention: Mark B. Stein, Esq.
Fax No.: (617) 341-7701
If to ABCO: The Advisory Board Company
2445 M St. NW
Washington, DC 20037
Attention: General Counsel
Notice shall be deemed given (a) on the date of receipt if delivered personally; (b) on the business day following delivery of such notice to the overnight courier; or (c) three (3) business days after deposit in the mail in accordance with the foregoing. Either Party may change the address to which to send notices by notifying the other Party of such change of address in writing in accordance with the foregoing.
14.13 Press Releases: No press releases or other public announcements concerning the transactions contemplated by this Agreement shall be made by ABCO or Evolent without the prior written consent of both Parties; provided, however, that nothing herein shall prevent a Party from supplying such information or making statements as required by governmental authority or in order for a Party to satisfy its legal obligations (prompt notice of which shall in any such case be given to the other Party).
14.14 Severability: Any terms or provisions of this Agreement that shall prove to be invalid, void or illegal shall in no way affect, impair, or invalidate any other term or provision herein and such remaining terms and provisions shall remain in full force and effect provided that its general purposes are still reasonably capable of being effected. All such terms or provisions which are determined by a court of competent jurisdiction or other dispute resolution proceeding to be invalid, void or illegal shall be construed and limited so as to allow the maximum effect permissible by Law.
14.15 Waiver: The waiver by either Party to this Agreement of any one or more defaults, if any, on the part of the other, shall not be construed to operate as a waiver of any other or future defaults under the same or different terms, conditions or covenants contained in this Agreement.
IN WITNESS WHEREOF, the Parties have executed this Agreement effective as of the date first written above.
THE ADVISORY BOARD COMPANY EVOLENT HEALTH, INC.
/s/ Evan Farber
By: Evan Farber By:
Its: General Counsel Its:
[Signature Page to Amended and Restated Services, Reseller and Non-Competition Agreement]
IN WITNESS WHEREOF, the Parties have executed this Agreement effective as of the date first written above.
THE ADVISORY BOARD COMPANY EVOLENT HEALTH, INC.
/s/ Frank Williams
By: By: Frank Williams
Its: Its: CEO
| Entailment |
623_nda-11 | 623_nda-11_0 | Q: Receiving Party shall not reverse engineer any objects which embody Disclosing Party's Confidential Information.
Text: Exhibit 10.3
NON-COMPETITION AGREEMENT
WHEREAS, Alliqua BioMedical, Inc. (“Alliqua”), Alliqua Holdings, Inc., a Delaware corporation and a wholly-owned subsidiary of Alliqua (“Parent” and together with Alliqua, the “Alliqua Entities”), Chesapeake Merger Corp., a Delaware corporation and a wholly-owned subsidiary of Parent, and Soluble Systems, LLC, a Virginia limited liability company (the “Company”), have entered into that certain Contribution Agreement and Plan of Merger, dated as of October 5, 2016 (the “Contribution and Merger Agreement”);
WHEREAS, [●] (the “Restricted Party”) acknowledges that a material aspect of the Alliqua Entities’ decision to enter into the Contribution and Merger Agreement is the value and maintenance of the reputation and goodwill of the Company;
WHEREAS, as a material inducement to the Alliqua Entities to enter into the Contribution and Merger Agreement and consummate the transactions contemplated thereby, the Company has agreed that the Restricted Party shall execute this Agreement; and WHEREAS, the Contribution and Merger Agreement contemplates that the Restricted Party shall execute this Agreement;
NOW, THEREFORE, in consideration of the recitals and the covenants, representations, warranties, conditions and agreement hereinafter expressed, the Alliqua Entities and the Restricted Party agree as follows:
1. Effective Date. Subject to the Closing of the transactions contemplated by the Contribution and Merger Agreement, this Agreement shall be effective as of and on the Closing Date (the “Effective Date”).
2. Definitions. For all purposes under this Agreement, the following terms shall have the meaning set forth below. Any terms used but not otherwise defined herein shall have the respective meanings ascribed to them in the Contribution and Merger Agreement:
(a) “Confidential Information” includes any trade secrets or confidential or proprietary information of the Company, its Affiliates, and its and their respective predecessors and successors, including, but not limited to, the following: methods of operation, products, inventions, services, processes, equipment, know-how, technology, technical data, policies, strategies, designs, formulas, developmental or experimental work, improvements, discoveries, research, plans for research or future products and services, database schemas or tables, software, development tools or techniques, training procedures, training techniques, training manuals, business information, marketing and sales methods, plans and strategies, competitors, markets, market surveys, techniques, production processes, infrastructure, business plans, distribution and installation plans, processes and strategies, methodologies, budgets, financial data and information, customer and client information, prices and costs, fees, customer and client lists and profiles, employee, customer and client nonpublic personal information, supplier lists, business records, product construction, product specifications, audit processes, pricing strategies, business strategies, marketing and promotional practices, management methods and information, plans, reports, recommendations and conclusions, information regarding the skills and compensation of employees and contractors, and other business information disclosed to the Restricted Party by the Company, either directly or indirectly, in writing, orally, or by drawings or observation. “Confidential Information” does not include, and there shall be no obligation hereunder with respect to, information that: (i) is generally available to the public on the date of this Agreement; (ii) becomes generally available to the public other than as a result of a disclosure not otherwise permissible hereunder, (iii) was available, or becomes available, to the Restricted Party from a source other than the Alliqua Entities or its Representatives, provided that such source, to the Restricted Party’s actual knowledge after reasonable inquiry, was lawfully permitted to disclose such information; or (iv) has been independently acquired or developed by the Restricted Party without violating any of the Restricted Party’s obligations under this Agreement or otherwise owed to the Alliqua Entities or its Representatives.
(b) “Restricted Business” shall mean the business of providing a skin substitute for chronic wound care.
(c) “Restricted Period” shall mean a period commencing from the Effective Date until the two (2)-year anniversary of the Effective Date.
3. Acknowledgement.
(a) This Agreement is entered into in connection with the transactions contemplated by the Contribution and Merger Agreement. The parties acknowledge that it would be detrimental to the Alliqua Entities if the Restricted Party were to compete with the Alliqua Entities any time during the Restricted Period or to solicit customers, clients, employees or contractors of the Company or Alliqua Entities at any time during the Restricted Period.
(b) The Restricted Party recognizes that the covenants set forth herein are an essential part of the transactions contemplated by the Contribution and Merger Agreement and that but for the agreement of the Restricted Party to comply with such covenants, the Alliqua Entities would not enter into the Contribution and Merger Agreement. The Restricted Party acknowledges and agrees that the covenants set forth herein are necessary to protect the legitimate business interests of the Alliqua Entities acquired pursuant to the Contribution and Merger Agreement. In addition, the Restricted Party acknowledges that the consideration paid pursuant to the terms of the Contribution and Merger Agreement is paid in part as consideration for customer and client contacts, marketplace reputation and goodwill developed by the Restricted Party for the Company and the covenants set forth herein are necessary for the Alliqua Entities to receive the full benefit of the Contribution and Merger Agreement.
(c) The Restricted Party hereby acknowledges the broad territorial scope of the covenants contained in this Agreement, but acknowledges and agrees that the restrictions are reasonable and enforceable in view of, among other things, (i) the narrow range of activities prohibited, (ii) the Company’s products and services are marketed on a wide geographic scope, (iii) the Confidential Information of the Company to which the Restricted Party had, has or will have access, (iv) the fact that a business that competes with Alliqua Entities could greatly benefit if it were to obtain the Confidential Information of the Company, (v) the Alliqua Entities acquisition of the Company Intellectual Property and goodwill of the Company pursuant to the transactions contemplated by the Contribution and Merger Agreement, (vi) the fact that the Restricted Party would have an unfair competitive advantage if the Restricted Party were allowed to engage in the competitive activities prohibited by this Agreement in light of the Confidential Information and/or goodwill that the Restricted Party has acquired, and (vii) the provisions of this Agreement are reasonable and necessary to protect and preserve the Alliqua Entities’ interests in and right to use and operate the Company’s business from and after Closing.
4. Non-Disclosure. The Restricted Party agrees not to dispute, contest, or deny any ownership rights of the Alliqua Entities of the Confidential Information or the Company Intellectual Property. The Restricted Party agrees to preserve and protect the confidentiality of all Confidential Information. The Restricted Party shall not directly or indirectly, disclose to any unauthorized person or use for the Restricted Party’s own account any Confidential Information. The Restricted Party shall hold all Confidential Information in the strictest confidence, and take all commercially reasonable precautions to prevent its inadvertent disclosure to any unauthorized person. The Restricted Party shall not, directly or indirectly, other than on behalf of the Alliqua Entities, utilize, disclose or make available to any other person or entity, any of the Confidential Information. Notwithstanding anything herein to the contrary, the covenants in this Section 4 shall not apply to Confidential Information that the Restricted Party is required to disclose by applicable Law, after providing written notice to the Alliqua Entities before producing the information, which notice shall be given as soon as practicable, so that the Alliqua Entities, at their sole expense, may seek a protective order or other appropriate remedy.
5. Non-Competition and Non-Solicitation. In exchange for the consideration contemplated under the Contribution and Merger Agreement and the consummation of the other transactions contemplated by the Contribution and Merger Agreement:
(a) During the Restricted Period, the Restricted Party shall not, directly or indirectly, own, manage, engage in, operate, control, work for, consult with, render services for, do business with, maintain any interest in (proprietary, financial or otherwise) or participate in the ownership, management, operation or control of, any business, whether in corporate, proprietorship or partnership form or otherwise, engage in the Restricted Business, other than on behalf of the Alliqua Entities; provided, that the restrictions contained in this Section 5(a) shall not restrict the acquisition by the Restricted Party, directly or indirectly, of less than 5% of the outstanding capital stock of any publicly traded company engaged in a Restricted Business.
(b) During the Restricted Period, the Restricted Party shall not, directly or indirectly, solicit, induce, recruit or encourage anyone who is a consultant or employee of the Company or the Alliqua Entities to terminate his or her employment or consulting relationship with the Company or the Alliqua Entities, or without the consent of the Alliqua Entities, hire, retain or engage any such person for the Restricted Party or for another Person or entity. Notwithstanding anything herein to the contrary, nothing in this Section 5(b) shall prevent the Restricted Party or any of its Affiliates from hiring, soliciting, inducing, recruiting or encouraging (i) any employee or consultant whose employment or consultancy has been terminated by the Company or the Alliqua Entities; or (ii) twelve (12) months after the date of termination of employment, any employee or consultant whose employment has been terminated by the employee or the consultant.
(c) During the Restricted Period, the Restricted Party shall not, directly or indirectly: (i) solicit business from, interfere with, attempt to solicit business from, interfere with, or do business with any actual or prospective customer or client with whom the Company or the Alliqua Entities does or has done business (including direct purchasers of the Company’s TheraSkin® product), in any case for the purpose of discussing or securing business or contracts related to the Restricted Business, or (ii) attempt to influence, encourage, persuade or induce any such actual or prospective customer or client whom the Company or the Alliqua Entities does or has done business to reduce the extent of its business dealings with the Alliqua Entities (including direct purchasers of the Company’s TheraSkin® product).
(d) The Restricted Party shall not, and shall cause any Affiliates not to, disparage or initiate negative publicity about the Company, the Alliqua Entities, or any of their respective employees, agents, business, policies, products, or services.
(e) If the Restricted Party violates any of the restrictions contained in this Article 5, the Restricted Period shall be suspended and shall not run in favor of the Restricted Party from the time of commencement of any violation until the time when the Restricted Party ceases the violation.
6. Remedies. The Restricted Party acknowledges that the restrictions contained herein, in view of the nature of the Company’s business and the businesses of the Alliqua Entities, are reasonable and necessary to protect their legitimate business interests, business goodwill and reputation, and that any violation of these restrictions would result in irreparable injury and continuing damage to them, and that money damages would not be a sufficient remedy for any such breach or threatened breach. Therefore, the Restricted Party agrees that the Alliqua Entities shall be entitled to seek a temporary restraining order and injunctive relief restraining the Restricted Party from the commission of any breach or threatened breach of any covenants herein, without the necessity of establishing irreparable harm or the posting of a bond, and to recover from the Restricted Party damages incurred, as well as the attorneys’ fees, costs and expenses related to any breach or threatened breach of this Agreement and enforcement of this Agreement. Nothing contained in this Agreement shall be construed as prohibiting the Alliqua Entities from pursuing any other remedies available to them for any breach or threatened breach, including, without limitation, the recovery of money damages, attorneys’ fees, and costs. The existence of any claim or cause of action by the Restricted Party, whether predicated on this Agreement or otherwise, shall not constitute a defense to the enforcement of the restrictive covenants contained herein, or preclude injunctive relief.
7. Assignment; Binding Agreement. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors and permitted assigns. The Restricted Party may not assign this Agreement to a third party. The Alliqua Entities may assign their rights, together with their obligations hereunder, to any Affiliates and/or subsidiary or any successor thereto or any purchaser of substantially all of their assets.
8. Reformation. The Restricted Party agrees that in the event any of the covenants contained herein shall be held by any court to be effective in any particular area or jurisdiction only if said covenant is modified to limit its duration or scope, then the court shall have such authority to so reform the covenant and the parties hereto shall consider such covenant(s) and/or other provisions to be amended and modified with respect to that particular area or jurisdiction so as to comply with the order of any such court and, as to all other jurisdictions, the covenants contained herein shall remain in full force and effect as originally written.
9. Partial Invalidity. In the event any court of competent jurisdiction holds any provision of this Agreement to be invalid or unenforceable, such invalid or unenforceable portion(s) shall be limited or excluded from this Agreement to the minimum extent required, and the remaining provisions shall not be affected or invalidated and shall remain in full force and effect.
10. Waiver. The rights and remedies of the parties to this Agreement are cumulative and without prejudice to any other rights or remedies under applicable law. Neither the failure nor any delay by any party in exercising any right, power or privilege under this Agreement will operate as a waiver of such right, power or privilege, and no single or partial exercise of any such right, power or privilege will preclude any other or further exercise of such right, power or privilege or the exercise of any other right, power or privilege. To the maximum extent permitted by applicable law, (a) no claim or right arising out of this Agreement can be discharged by one party, in whole or in part, by a waiver or renunciation of the claim or right unless in writing signed by the other party; (b) no waiver that may be given by a party will be applicable, except in the specific instance for which it is given; and (c) no notice or demand on one party will be deemed to be a waiver of any obligation of such party or of the right of the party giving such notice or demand to take further action without notice or demand as provided in this Agreement.
11. Entire Agreement. This Agreement, together with the Contribution and Merger Agreement, constitutes the entire agreement between the parties with respect to the subject matter hereof, and fully supersedes all prior and contemporaneous negotiations, promises, understandings, representations, writings, discussions and/or agreements between the parties, whether written or oral, pertaining to or concerning the subject matter of this Agreement. No oral statements or other prior written material not specifically incorporated into this Agreement shall be of any force or effect, and no changes in or additions to this Agreement shall be recognized, unless incorporated into this Agreement by written amendment, such amendment to become effective on the date stipulated in it. Any amendment to this Agreement must be signed by all parties to this Agreement.
12. Controlling Law and Venue. This Agreement shall be governed by and construed under the laws of the Commonwealth of Virginia. Venue of any litigation arising from this Agreement shall be in the United States District Court for the Eastern District of Virginia, or a state court of competent jurisdiction in Newport News, Virginia. The Restricted Party consents to personal jurisdiction of the United States District Court for the Eastern District of Virginia, or a state court of competent jurisdiction in Newport News, Virginia for any dispute relating to or arising out of this Agreement, and the Restricted Party agrees that the Restricted Party shall not challenge personal or subject matter jurisdiction in such courts.
13. Counterparts. This Agreement may be executed by the parties in multiple counterparts, whether or not all signatories appear on these counterparts (including via electronic signatures and exchange of PDF documents via email), each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
{Remainder of Page Intentionally Left Blank}
IN WITNESS WHEREOF, the parties have executed this Agreement, effective as of the Effective Date and subject to the consummation of the transactions contemplated by the Contribution and Merger Agreement.
THE RESTRICTED PARTY: Signature:
Printed Name:
Date:
THE COMPANIES: ALLIQUA HOLDINGS, INC
Signature:
Name:
Title:
Date:
ALLIQUA BIOMEDICAL, INC.
Signature:
Name:
Title:
Date:
Signature Page to Non-Competition and Non-Solicitation Agreement
| Not mentioned |
623_nda-16 | 623_nda-16_0 | Q: Receiving Party shall destroy or return some Confidential Information upon the termination of Agreement.
Text: Exhibit 10.3
NON-COMPETITION AGREEMENT
WHEREAS, Alliqua BioMedical, Inc. (“Alliqua”), Alliqua Holdings, Inc., a Delaware corporation and a wholly-owned subsidiary of Alliqua (“Parent” and together with Alliqua, the “Alliqua Entities”), Chesapeake Merger Corp., a Delaware corporation and a wholly-owned subsidiary of Parent, and Soluble Systems, LLC, a Virginia limited liability company (the “Company”), have entered into that certain Contribution Agreement and Plan of Merger, dated as of October 5, 2016 (the “Contribution and Merger Agreement”);
WHEREAS, [●] (the “Restricted Party”) acknowledges that a material aspect of the Alliqua Entities’ decision to enter into the Contribution and Merger Agreement is the value and maintenance of the reputation and goodwill of the Company;
WHEREAS, as a material inducement to the Alliqua Entities to enter into the Contribution and Merger Agreement and consummate the transactions contemplated thereby, the Company has agreed that the Restricted Party shall execute this Agreement; and WHEREAS, the Contribution and Merger Agreement contemplates that the Restricted Party shall execute this Agreement;
NOW, THEREFORE, in consideration of the recitals and the covenants, representations, warranties, conditions and agreement hereinafter expressed, the Alliqua Entities and the Restricted Party agree as follows:
1. Effective Date. Subject to the Closing of the transactions contemplated by the Contribution and Merger Agreement, this Agreement shall be effective as of and on the Closing Date (the “Effective Date”).
2. Definitions. For all purposes under this Agreement, the following terms shall have the meaning set forth below. Any terms used but not otherwise defined herein shall have the respective meanings ascribed to them in the Contribution and Merger Agreement:
(a) “Confidential Information” includes any trade secrets or confidential or proprietary information of the Company, its Affiliates, and its and their respective predecessors and successors, including, but not limited to, the following: methods of operation, products, inventions, services, processes, equipment, know-how, technology, technical data, policies, strategies, designs, formulas, developmental or experimental work, improvements, discoveries, research, plans for research or future products and services, database schemas or tables, software, development tools or techniques, training procedures, training techniques, training manuals, business information, marketing and sales methods, plans and strategies, competitors, markets, market surveys, techniques, production processes, infrastructure, business plans, distribution and installation plans, processes and strategies, methodologies, budgets, financial data and information, customer and client information, prices and costs, fees, customer and client lists and profiles, employee, customer and client nonpublic personal information, supplier lists, business records, product construction, product specifications, audit processes, pricing strategies, business strategies, marketing and promotional practices, management methods and information, plans, reports, recommendations and conclusions, information regarding the skills and compensation of employees and contractors, and other business information disclosed to the Restricted Party by the Company, either directly or indirectly, in writing, orally, or by drawings or observation. “Confidential Information” does not include, and there shall be no obligation hereunder with respect to, information that: (i) is generally available to the public on the date of this Agreement; (ii) becomes generally available to the public other than as a result of a disclosure not otherwise permissible hereunder, (iii) was available, or becomes available, to the Restricted Party from a source other than the Alliqua Entities or its Representatives, provided that such source, to the Restricted Party’s actual knowledge after reasonable inquiry, was lawfully permitted to disclose such information; or (iv) has been independently acquired or developed by the Restricted Party without violating any of the Restricted Party’s obligations under this Agreement or otherwise owed to the Alliqua Entities or its Representatives.
(b) “Restricted Business” shall mean the business of providing a skin substitute for chronic wound care.
(c) “Restricted Period” shall mean a period commencing from the Effective Date until the two (2)-year anniversary of the Effective Date.
3. Acknowledgement.
(a) This Agreement is entered into in connection with the transactions contemplated by the Contribution and Merger Agreement. The parties acknowledge that it would be detrimental to the Alliqua Entities if the Restricted Party were to compete with the Alliqua Entities any time during the Restricted Period or to solicit customers, clients, employees or contractors of the Company or Alliqua Entities at any time during the Restricted Period.
(b) The Restricted Party recognizes that the covenants set forth herein are an essential part of the transactions contemplated by the Contribution and Merger Agreement and that but for the agreement of the Restricted Party to comply with such covenants, the Alliqua Entities would not enter into the Contribution and Merger Agreement. The Restricted Party acknowledges and agrees that the covenants set forth herein are necessary to protect the legitimate business interests of the Alliqua Entities acquired pursuant to the Contribution and Merger Agreement. In addition, the Restricted Party acknowledges that the consideration paid pursuant to the terms of the Contribution and Merger Agreement is paid in part as consideration for customer and client contacts, marketplace reputation and goodwill developed by the Restricted Party for the Company and the covenants set forth herein are necessary for the Alliqua Entities to receive the full benefit of the Contribution and Merger Agreement.
(c) The Restricted Party hereby acknowledges the broad territorial scope of the covenants contained in this Agreement, but acknowledges and agrees that the restrictions are reasonable and enforceable in view of, among other things, (i) the narrow range of activities prohibited, (ii) the Company’s products and services are marketed on a wide geographic scope, (iii) the Confidential Information of the Company to which the Restricted Party had, has or will have access, (iv) the fact that a business that competes with Alliqua Entities could greatly benefit if it were to obtain the Confidential Information of the Company, (v) the Alliqua Entities acquisition of the Company Intellectual Property and goodwill of the Company pursuant to the transactions contemplated by the Contribution and Merger Agreement, (vi) the fact that the Restricted Party would have an unfair competitive advantage if the Restricted Party were allowed to engage in the competitive activities prohibited by this Agreement in light of the Confidential Information and/or goodwill that the Restricted Party has acquired, and (vii) the provisions of this Agreement are reasonable and necessary to protect and preserve the Alliqua Entities’ interests in and right to use and operate the Company’s business from and after Closing.
4. Non-Disclosure. The Restricted Party agrees not to dispute, contest, or deny any ownership rights of the Alliqua Entities of the Confidential Information or the Company Intellectual Property. The Restricted Party agrees to preserve and protect the confidentiality of all Confidential Information. The Restricted Party shall not directly or indirectly, disclose to any unauthorized person or use for the Restricted Party’s own account any Confidential Information. The Restricted Party shall hold all Confidential Information in the strictest confidence, and take all commercially reasonable precautions to prevent its inadvertent disclosure to any unauthorized person. The Restricted Party shall not, directly or indirectly, other than on behalf of the Alliqua Entities, utilize, disclose or make available to any other person or entity, any of the Confidential Information. Notwithstanding anything herein to the contrary, the covenants in this Section 4 shall not apply to Confidential Information that the Restricted Party is required to disclose by applicable Law, after providing written notice to the Alliqua Entities before producing the information, which notice shall be given as soon as practicable, so that the Alliqua Entities, at their sole expense, may seek a protective order or other appropriate remedy.
5. Non-Competition and Non-Solicitation. In exchange for the consideration contemplated under the Contribution and Merger Agreement and the consummation of the other transactions contemplated by the Contribution and Merger Agreement:
(a) During the Restricted Period, the Restricted Party shall not, directly or indirectly, own, manage, engage in, operate, control, work for, consult with, render services for, do business with, maintain any interest in (proprietary, financial or otherwise) or participate in the ownership, management, operation or control of, any business, whether in corporate, proprietorship or partnership form or otherwise, engage in the Restricted Business, other than on behalf of the Alliqua Entities; provided, that the restrictions contained in this Section 5(a) shall not restrict the acquisition by the Restricted Party, directly or indirectly, of less than 5% of the outstanding capital stock of any publicly traded company engaged in a Restricted Business.
(b) During the Restricted Period, the Restricted Party shall not, directly or indirectly, solicit, induce, recruit or encourage anyone who is a consultant or employee of the Company or the Alliqua Entities to terminate his or her employment or consulting relationship with the Company or the Alliqua Entities, or without the consent of the Alliqua Entities, hire, retain or engage any such person for the Restricted Party or for another Person or entity. Notwithstanding anything herein to the contrary, nothing in this Section 5(b) shall prevent the Restricted Party or any of its Affiliates from hiring, soliciting, inducing, recruiting or encouraging (i) any employee or consultant whose employment or consultancy has been terminated by the Company or the Alliqua Entities; or (ii) twelve (12) months after the date of termination of employment, any employee or consultant whose employment has been terminated by the employee or the consultant.
(c) During the Restricted Period, the Restricted Party shall not, directly or indirectly: (i) solicit business from, interfere with, attempt to solicit business from, interfere with, or do business with any actual or prospective customer or client with whom the Company or the Alliqua Entities does or has done business (including direct purchasers of the Company’s TheraSkin® product), in any case for the purpose of discussing or securing business or contracts related to the Restricted Business, or (ii) attempt to influence, encourage, persuade or induce any such actual or prospective customer or client whom the Company or the Alliqua Entities does or has done business to reduce the extent of its business dealings with the Alliqua Entities (including direct purchasers of the Company’s TheraSkin® product).
(d) The Restricted Party shall not, and shall cause any Affiliates not to, disparage or initiate negative publicity about the Company, the Alliqua Entities, or any of their respective employees, agents, business, policies, products, or services.
(e) If the Restricted Party violates any of the restrictions contained in this Article 5, the Restricted Period shall be suspended and shall not run in favor of the Restricted Party from the time of commencement of any violation until the time when the Restricted Party ceases the violation.
6. Remedies. The Restricted Party acknowledges that the restrictions contained herein, in view of the nature of the Company’s business and the businesses of the Alliqua Entities, are reasonable and necessary to protect their legitimate business interests, business goodwill and reputation, and that any violation of these restrictions would result in irreparable injury and continuing damage to them, and that money damages would not be a sufficient remedy for any such breach or threatened breach. Therefore, the Restricted Party agrees that the Alliqua Entities shall be entitled to seek a temporary restraining order and injunctive relief restraining the Restricted Party from the commission of any breach or threatened breach of any covenants herein, without the necessity of establishing irreparable harm or the posting of a bond, and to recover from the Restricted Party damages incurred, as well as the attorneys’ fees, costs and expenses related to any breach or threatened breach of this Agreement and enforcement of this Agreement. Nothing contained in this Agreement shall be construed as prohibiting the Alliqua Entities from pursuing any other remedies available to them for any breach or threatened breach, including, without limitation, the recovery of money damages, attorneys’ fees, and costs. The existence of any claim or cause of action by the Restricted Party, whether predicated on this Agreement or otherwise, shall not constitute a defense to the enforcement of the restrictive covenants contained herein, or preclude injunctive relief.
7. Assignment; Binding Agreement. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors and permitted assigns. The Restricted Party may not assign this Agreement to a third party. The Alliqua Entities may assign their rights, together with their obligations hereunder, to any Affiliates and/or subsidiary or any successor thereto or any purchaser of substantially all of their assets.
8. Reformation. The Restricted Party agrees that in the event any of the covenants contained herein shall be held by any court to be effective in any particular area or jurisdiction only if said covenant is modified to limit its duration or scope, then the court shall have such authority to so reform the covenant and the parties hereto shall consider such covenant(s) and/or other provisions to be amended and modified with respect to that particular area or jurisdiction so as to comply with the order of any such court and, as to all other jurisdictions, the covenants contained herein shall remain in full force and effect as originally written.
9. Partial Invalidity. In the event any court of competent jurisdiction holds any provision of this Agreement to be invalid or unenforceable, such invalid or unenforceable portion(s) shall be limited or excluded from this Agreement to the minimum extent required, and the remaining provisions shall not be affected or invalidated and shall remain in full force and effect.
10. Waiver. The rights and remedies of the parties to this Agreement are cumulative and without prejudice to any other rights or remedies under applicable law. Neither the failure nor any delay by any party in exercising any right, power or privilege under this Agreement will operate as a waiver of such right, power or privilege, and no single or partial exercise of any such right, power or privilege will preclude any other or further exercise of such right, power or privilege or the exercise of any other right, power or privilege. To the maximum extent permitted by applicable law, (a) no claim or right arising out of this Agreement can be discharged by one party, in whole or in part, by a waiver or renunciation of the claim or right unless in writing signed by the other party; (b) no waiver that may be given by a party will be applicable, except in the specific instance for which it is given; and (c) no notice or demand on one party will be deemed to be a waiver of any obligation of such party or of the right of the party giving such notice or demand to take further action without notice or demand as provided in this Agreement.
11. Entire Agreement. This Agreement, together with the Contribution and Merger Agreement, constitutes the entire agreement between the parties with respect to the subject matter hereof, and fully supersedes all prior and contemporaneous negotiations, promises, understandings, representations, writings, discussions and/or agreements between the parties, whether written or oral, pertaining to or concerning the subject matter of this Agreement. No oral statements or other prior written material not specifically incorporated into this Agreement shall be of any force or effect, and no changes in or additions to this Agreement shall be recognized, unless incorporated into this Agreement by written amendment, such amendment to become effective on the date stipulated in it. Any amendment to this Agreement must be signed by all parties to this Agreement.
12. Controlling Law and Venue. This Agreement shall be governed by and construed under the laws of the Commonwealth of Virginia. Venue of any litigation arising from this Agreement shall be in the United States District Court for the Eastern District of Virginia, or a state court of competent jurisdiction in Newport News, Virginia. The Restricted Party consents to personal jurisdiction of the United States District Court for the Eastern District of Virginia, or a state court of competent jurisdiction in Newport News, Virginia for any dispute relating to or arising out of this Agreement, and the Restricted Party agrees that the Restricted Party shall not challenge personal or subject matter jurisdiction in such courts.
13. Counterparts. This Agreement may be executed by the parties in multiple counterparts, whether or not all signatories appear on these counterparts (including via electronic signatures and exchange of PDF documents via email), each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
{Remainder of Page Intentionally Left Blank}
IN WITNESS WHEREOF, the parties have executed this Agreement, effective as of the Effective Date and subject to the consummation of the transactions contemplated by the Contribution and Merger Agreement.
THE RESTRICTED PARTY: Signature:
Printed Name:
Date:
THE COMPANIES: ALLIQUA HOLDINGS, INC
Signature:
Name:
Title:
Date:
ALLIQUA BIOMEDICAL, INC.
Signature:
Name:
Title:
Date:
Signature Page to Non-Competition and Non-Solicitation Agreement
| Not mentioned |
623_nda-15 | 623_nda-15_0 | Q: Agreement shall not grant Receiving Party any right to Confidential Information.
Text: Exhibit 10.3
NON-COMPETITION AGREEMENT
WHEREAS, Alliqua BioMedical, Inc. (“Alliqua”), Alliqua Holdings, Inc., a Delaware corporation and a wholly-owned subsidiary of Alliqua (“Parent” and together with Alliqua, the “Alliqua Entities”), Chesapeake Merger Corp., a Delaware corporation and a wholly-owned subsidiary of Parent, and Soluble Systems, LLC, a Virginia limited liability company (the “Company”), have entered into that certain Contribution Agreement and Plan of Merger, dated as of October 5, 2016 (the “Contribution and Merger Agreement”);
WHEREAS, [●] (the “Restricted Party”) acknowledges that a material aspect of the Alliqua Entities’ decision to enter into the Contribution and Merger Agreement is the value and maintenance of the reputation and goodwill of the Company;
WHEREAS, as a material inducement to the Alliqua Entities to enter into the Contribution and Merger Agreement and consummate the transactions contemplated thereby, the Company has agreed that the Restricted Party shall execute this Agreement; and WHEREAS, the Contribution and Merger Agreement contemplates that the Restricted Party shall execute this Agreement;
NOW, THEREFORE, in consideration of the recitals and the covenants, representations, warranties, conditions and agreement hereinafter expressed, the Alliqua Entities and the Restricted Party agree as follows:
1. Effective Date. Subject to the Closing of the transactions contemplated by the Contribution and Merger Agreement, this Agreement shall be effective as of and on the Closing Date (the “Effective Date”).
2. Definitions. For all purposes under this Agreement, the following terms shall have the meaning set forth below. Any terms used but not otherwise defined herein shall have the respective meanings ascribed to them in the Contribution and Merger Agreement:
(a) “Confidential Information” includes any trade secrets or confidential or proprietary information of the Company, its Affiliates, and its and their respective predecessors and successors, including, but not limited to, the following: methods of operation, products, inventions, services, processes, equipment, know-how, technology, technical data, policies, strategies, designs, formulas, developmental or experimental work, improvements, discoveries, research, plans for research or future products and services, database schemas or tables, software, development tools or techniques, training procedures, training techniques, training manuals, business information, marketing and sales methods, plans and strategies, competitors, markets, market surveys, techniques, production processes, infrastructure, business plans, distribution and installation plans, processes and strategies, methodologies, budgets, financial data and information, customer and client information, prices and costs, fees, customer and client lists and profiles, employee, customer and client nonpublic personal information, supplier lists, business records, product construction, product specifications, audit processes, pricing strategies, business strategies, marketing and promotional practices, management methods and information, plans, reports, recommendations and conclusions, information regarding the skills and compensation of employees and contractors, and other business information disclosed to the Restricted Party by the Company, either directly or indirectly, in writing, orally, or by drawings or observation. “Confidential Information” does not include, and there shall be no obligation hereunder with respect to, information that: (i) is generally available to the public on the date of this Agreement; (ii) becomes generally available to the public other than as a result of a disclosure not otherwise permissible hereunder, (iii) was available, or becomes available, to the Restricted Party from a source other than the Alliqua Entities or its Representatives, provided that such source, to the Restricted Party’s actual knowledge after reasonable inquiry, was lawfully permitted to disclose such information; or (iv) has been independently acquired or developed by the Restricted Party without violating any of the Restricted Party’s obligations under this Agreement or otherwise owed to the Alliqua Entities or its Representatives.
(b) “Restricted Business” shall mean the business of providing a skin substitute for chronic wound care.
(c) “Restricted Period” shall mean a period commencing from the Effective Date until the two (2)-year anniversary of the Effective Date.
3. Acknowledgement.
(a) This Agreement is entered into in connection with the transactions contemplated by the Contribution and Merger Agreement. The parties acknowledge that it would be detrimental to the Alliqua Entities if the Restricted Party were to compete with the Alliqua Entities any time during the Restricted Period or to solicit customers, clients, employees or contractors of the Company or Alliqua Entities at any time during the Restricted Period.
(b) The Restricted Party recognizes that the covenants set forth herein are an essential part of the transactions contemplated by the Contribution and Merger Agreement and that but for the agreement of the Restricted Party to comply with such covenants, the Alliqua Entities would not enter into the Contribution and Merger Agreement. The Restricted Party acknowledges and agrees that the covenants set forth herein are necessary to protect the legitimate business interests of the Alliqua Entities acquired pursuant to the Contribution and Merger Agreement. In addition, the Restricted Party acknowledges that the consideration paid pursuant to the terms of the Contribution and Merger Agreement is paid in part as consideration for customer and client contacts, marketplace reputation and goodwill developed by the Restricted Party for the Company and the covenants set forth herein are necessary for the Alliqua Entities to receive the full benefit of the Contribution and Merger Agreement.
(c) The Restricted Party hereby acknowledges the broad territorial scope of the covenants contained in this Agreement, but acknowledges and agrees that the restrictions are reasonable and enforceable in view of, among other things, (i) the narrow range of activities prohibited, (ii) the Company’s products and services are marketed on a wide geographic scope, (iii) the Confidential Information of the Company to which the Restricted Party had, has or will have access, (iv) the fact that a business that competes with Alliqua Entities could greatly benefit if it were to obtain the Confidential Information of the Company, (v) the Alliqua Entities acquisition of the Company Intellectual Property and goodwill of the Company pursuant to the transactions contemplated by the Contribution and Merger Agreement, (vi) the fact that the Restricted Party would have an unfair competitive advantage if the Restricted Party were allowed to engage in the competitive activities prohibited by this Agreement in light of the Confidential Information and/or goodwill that the Restricted Party has acquired, and (vii) the provisions of this Agreement are reasonable and necessary to protect and preserve the Alliqua Entities’ interests in and right to use and operate the Company’s business from and after Closing.
4. Non-Disclosure. The Restricted Party agrees not to dispute, contest, or deny any ownership rights of the Alliqua Entities of the Confidential Information or the Company Intellectual Property. The Restricted Party agrees to preserve and protect the confidentiality of all Confidential Information. The Restricted Party shall not directly or indirectly, disclose to any unauthorized person or use for the Restricted Party’s own account any Confidential Information. The Restricted Party shall hold all Confidential Information in the strictest confidence, and take all commercially reasonable precautions to prevent its inadvertent disclosure to any unauthorized person. The Restricted Party shall not, directly or indirectly, other than on behalf of the Alliqua Entities, utilize, disclose or make available to any other person or entity, any of the Confidential Information. Notwithstanding anything herein to the contrary, the covenants in this Section 4 shall not apply to Confidential Information that the Restricted Party is required to disclose by applicable Law, after providing written notice to the Alliqua Entities before producing the information, which notice shall be given as soon as practicable, so that the Alliqua Entities, at their sole expense, may seek a protective order or other appropriate remedy.
5. Non-Competition and Non-Solicitation. In exchange for the consideration contemplated under the Contribution and Merger Agreement and the consummation of the other transactions contemplated by the Contribution and Merger Agreement:
(a) During the Restricted Period, the Restricted Party shall not, directly or indirectly, own, manage, engage in, operate, control, work for, consult with, render services for, do business with, maintain any interest in (proprietary, financial or otherwise) or participate in the ownership, management, operation or control of, any business, whether in corporate, proprietorship or partnership form or otherwise, engage in the Restricted Business, other than on behalf of the Alliqua Entities; provided, that the restrictions contained in this Section 5(a) shall not restrict the acquisition by the Restricted Party, directly or indirectly, of less than 5% of the outstanding capital stock of any publicly traded company engaged in a Restricted Business.
(b) During the Restricted Period, the Restricted Party shall not, directly or indirectly, solicit, induce, recruit or encourage anyone who is a consultant or employee of the Company or the Alliqua Entities to terminate his or her employment or consulting relationship with the Company or the Alliqua Entities, or without the consent of the Alliqua Entities, hire, retain or engage any such person for the Restricted Party or for another Person or entity. Notwithstanding anything herein to the contrary, nothing in this Section 5(b) shall prevent the Restricted Party or any of its Affiliates from hiring, soliciting, inducing, recruiting or encouraging (i) any employee or consultant whose employment or consultancy has been terminated by the Company or the Alliqua Entities; or (ii) twelve (12) months after the date of termination of employment, any employee or consultant whose employment has been terminated by the employee or the consultant.
(c) During the Restricted Period, the Restricted Party shall not, directly or indirectly: (i) solicit business from, interfere with, attempt to solicit business from, interfere with, or do business with any actual or prospective customer or client with whom the Company or the Alliqua Entities does or has done business (including direct purchasers of the Company’s TheraSkin® product), in any case for the purpose of discussing or securing business or contracts related to the Restricted Business, or (ii) attempt to influence, encourage, persuade or induce any such actual or prospective customer or client whom the Company or the Alliqua Entities does or has done business to reduce the extent of its business dealings with the Alliqua Entities (including direct purchasers of the Company’s TheraSkin® product).
(d) The Restricted Party shall not, and shall cause any Affiliates not to, disparage or initiate negative publicity about the Company, the Alliqua Entities, or any of their respective employees, agents, business, policies, products, or services.
(e) If the Restricted Party violates any of the restrictions contained in this Article 5, the Restricted Period shall be suspended and shall not run in favor of the Restricted Party from the time of commencement of any violation until the time when the Restricted Party ceases the violation.
6. Remedies. The Restricted Party acknowledges that the restrictions contained herein, in view of the nature of the Company’s business and the businesses of the Alliqua Entities, are reasonable and necessary to protect their legitimate business interests, business goodwill and reputation, and that any violation of these restrictions would result in irreparable injury and continuing damage to them, and that money damages would not be a sufficient remedy for any such breach or threatened breach. Therefore, the Restricted Party agrees that the Alliqua Entities shall be entitled to seek a temporary restraining order and injunctive relief restraining the Restricted Party from the commission of any breach or threatened breach of any covenants herein, without the necessity of establishing irreparable harm or the posting of a bond, and to recover from the Restricted Party damages incurred, as well as the attorneys’ fees, costs and expenses related to any breach or threatened breach of this Agreement and enforcement of this Agreement. Nothing contained in this Agreement shall be construed as prohibiting the Alliqua Entities from pursuing any other remedies available to them for any breach or threatened breach, including, without limitation, the recovery of money damages, attorneys’ fees, and costs. The existence of any claim or cause of action by the Restricted Party, whether predicated on this Agreement or otherwise, shall not constitute a defense to the enforcement of the restrictive covenants contained herein, or preclude injunctive relief.
7. Assignment; Binding Agreement. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors and permitted assigns. The Restricted Party may not assign this Agreement to a third party. The Alliqua Entities may assign their rights, together with their obligations hereunder, to any Affiliates and/or subsidiary or any successor thereto or any purchaser of substantially all of their assets.
8. Reformation. The Restricted Party agrees that in the event any of the covenants contained herein shall be held by any court to be effective in any particular area or jurisdiction only if said covenant is modified to limit its duration or scope, then the court shall have such authority to so reform the covenant and the parties hereto shall consider such covenant(s) and/or other provisions to be amended and modified with respect to that particular area or jurisdiction so as to comply with the order of any such court and, as to all other jurisdictions, the covenants contained herein shall remain in full force and effect as originally written.
9. Partial Invalidity. In the event any court of competent jurisdiction holds any provision of this Agreement to be invalid or unenforceable, such invalid or unenforceable portion(s) shall be limited or excluded from this Agreement to the minimum extent required, and the remaining provisions shall not be affected or invalidated and shall remain in full force and effect.
10. Waiver. The rights and remedies of the parties to this Agreement are cumulative and without prejudice to any other rights or remedies under applicable law. Neither the failure nor any delay by any party in exercising any right, power or privilege under this Agreement will operate as a waiver of such right, power or privilege, and no single or partial exercise of any such right, power or privilege will preclude any other or further exercise of such right, power or privilege or the exercise of any other right, power or privilege. To the maximum extent permitted by applicable law, (a) no claim or right arising out of this Agreement can be discharged by one party, in whole or in part, by a waiver or renunciation of the claim or right unless in writing signed by the other party; (b) no waiver that may be given by a party will be applicable, except in the specific instance for which it is given; and (c) no notice or demand on one party will be deemed to be a waiver of any obligation of such party or of the right of the party giving such notice or demand to take further action without notice or demand as provided in this Agreement.
11. Entire Agreement. This Agreement, together with the Contribution and Merger Agreement, constitutes the entire agreement between the parties with respect to the subject matter hereof, and fully supersedes all prior and contemporaneous negotiations, promises, understandings, representations, writings, discussions and/or agreements between the parties, whether written or oral, pertaining to or concerning the subject matter of this Agreement. No oral statements or other prior written material not specifically incorporated into this Agreement shall be of any force or effect, and no changes in or additions to this Agreement shall be recognized, unless incorporated into this Agreement by written amendment, such amendment to become effective on the date stipulated in it. Any amendment to this Agreement must be signed by all parties to this Agreement.
12. Controlling Law and Venue. This Agreement shall be governed by and construed under the laws of the Commonwealth of Virginia. Venue of any litigation arising from this Agreement shall be in the United States District Court for the Eastern District of Virginia, or a state court of competent jurisdiction in Newport News, Virginia. The Restricted Party consents to personal jurisdiction of the United States District Court for the Eastern District of Virginia, or a state court of competent jurisdiction in Newport News, Virginia for any dispute relating to or arising out of this Agreement, and the Restricted Party agrees that the Restricted Party shall not challenge personal or subject matter jurisdiction in such courts.
13. Counterparts. This Agreement may be executed by the parties in multiple counterparts, whether or not all signatories appear on these counterparts (including via electronic signatures and exchange of PDF documents via email), each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
{Remainder of Page Intentionally Left Blank}
IN WITNESS WHEREOF, the parties have executed this Agreement, effective as of the Effective Date and subject to the consummation of the transactions contemplated by the Contribution and Merger Agreement.
THE RESTRICTED PARTY: Signature:
Printed Name:
Date:
THE COMPANIES: ALLIQUA HOLDINGS, INC
Signature:
Name:
Title:
Date:
ALLIQUA BIOMEDICAL, INC.
Signature:
Name:
Title:
Date:
Signature Page to Non-Competition and Non-Solicitation Agreement
| Entailment |
623_nda-10 | 623_nda-10_0 | Q: Receiving Party shall not disclose the fact that Agreement was agreed or negotiated.
Text: Exhibit 10.3
NON-COMPETITION AGREEMENT
WHEREAS, Alliqua BioMedical, Inc. (“Alliqua”), Alliqua Holdings, Inc., a Delaware corporation and a wholly-owned subsidiary of Alliqua (“Parent” and together with Alliqua, the “Alliqua Entities”), Chesapeake Merger Corp., a Delaware corporation and a wholly-owned subsidiary of Parent, and Soluble Systems, LLC, a Virginia limited liability company (the “Company”), have entered into that certain Contribution Agreement and Plan of Merger, dated as of October 5, 2016 (the “Contribution and Merger Agreement”);
WHEREAS, [●] (the “Restricted Party”) acknowledges that a material aspect of the Alliqua Entities’ decision to enter into the Contribution and Merger Agreement is the value and maintenance of the reputation and goodwill of the Company;
WHEREAS, as a material inducement to the Alliqua Entities to enter into the Contribution and Merger Agreement and consummate the transactions contemplated thereby, the Company has agreed that the Restricted Party shall execute this Agreement; and WHEREAS, the Contribution and Merger Agreement contemplates that the Restricted Party shall execute this Agreement;
NOW, THEREFORE, in consideration of the recitals and the covenants, representations, warranties, conditions and agreement hereinafter expressed, the Alliqua Entities and the Restricted Party agree as follows:
1. Effective Date. Subject to the Closing of the transactions contemplated by the Contribution and Merger Agreement, this Agreement shall be effective as of and on the Closing Date (the “Effective Date”).
2. Definitions. For all purposes under this Agreement, the following terms shall have the meaning set forth below. Any terms used but not otherwise defined herein shall have the respective meanings ascribed to them in the Contribution and Merger Agreement:
(a) “Confidential Information” includes any trade secrets or confidential or proprietary information of the Company, its Affiliates, and its and their respective predecessors and successors, including, but not limited to, the following: methods of operation, products, inventions, services, processes, equipment, know-how, technology, technical data, policies, strategies, designs, formulas, developmental or experimental work, improvements, discoveries, research, plans for research or future products and services, database schemas or tables, software, development tools or techniques, training procedures, training techniques, training manuals, business information, marketing and sales methods, plans and strategies, competitors, markets, market surveys, techniques, production processes, infrastructure, business plans, distribution and installation plans, processes and strategies, methodologies, budgets, financial data and information, customer and client information, prices and costs, fees, customer and client lists and profiles, employee, customer and client nonpublic personal information, supplier lists, business records, product construction, product specifications, audit processes, pricing strategies, business strategies, marketing and promotional practices, management methods and information, plans, reports, recommendations and conclusions, information regarding the skills and compensation of employees and contractors, and other business information disclosed to the Restricted Party by the Company, either directly or indirectly, in writing, orally, or by drawings or observation. “Confidential Information” does not include, and there shall be no obligation hereunder with respect to, information that: (i) is generally available to the public on the date of this Agreement; (ii) becomes generally available to the public other than as a result of a disclosure not otherwise permissible hereunder, (iii) was available, or becomes available, to the Restricted Party from a source other than the Alliqua Entities or its Representatives, provided that such source, to the Restricted Party’s actual knowledge after reasonable inquiry, was lawfully permitted to disclose such information; or (iv) has been independently acquired or developed by the Restricted Party without violating any of the Restricted Party’s obligations under this Agreement or otherwise owed to the Alliqua Entities or its Representatives.
(b) “Restricted Business” shall mean the business of providing a skin substitute for chronic wound care.
(c) “Restricted Period” shall mean a period commencing from the Effective Date until the two (2)-year anniversary of the Effective Date.
3. Acknowledgement.
(a) This Agreement is entered into in connection with the transactions contemplated by the Contribution and Merger Agreement. The parties acknowledge that it would be detrimental to the Alliqua Entities if the Restricted Party were to compete with the Alliqua Entities any time during the Restricted Period or to solicit customers, clients, employees or contractors of the Company or Alliqua Entities at any time during the Restricted Period.
(b) The Restricted Party recognizes that the covenants set forth herein are an essential part of the transactions contemplated by the Contribution and Merger Agreement and that but for the agreement of the Restricted Party to comply with such covenants, the Alliqua Entities would not enter into the Contribution and Merger Agreement. The Restricted Party acknowledges and agrees that the covenants set forth herein are necessary to protect the legitimate business interests of the Alliqua Entities acquired pursuant to the Contribution and Merger Agreement. In addition, the Restricted Party acknowledges that the consideration paid pursuant to the terms of the Contribution and Merger Agreement is paid in part as consideration for customer and client contacts, marketplace reputation and goodwill developed by the Restricted Party for the Company and the covenants set forth herein are necessary for the Alliqua Entities to receive the full benefit of the Contribution and Merger Agreement.
(c) The Restricted Party hereby acknowledges the broad territorial scope of the covenants contained in this Agreement, but acknowledges and agrees that the restrictions are reasonable and enforceable in view of, among other things, (i) the narrow range of activities prohibited, (ii) the Company’s products and services are marketed on a wide geographic scope, (iii) the Confidential Information of the Company to which the Restricted Party had, has or will have access, (iv) the fact that a business that competes with Alliqua Entities could greatly benefit if it were to obtain the Confidential Information of the Company, (v) the Alliqua Entities acquisition of the Company Intellectual Property and goodwill of the Company pursuant to the transactions contemplated by the Contribution and Merger Agreement, (vi) the fact that the Restricted Party would have an unfair competitive advantage if the Restricted Party were allowed to engage in the competitive activities prohibited by this Agreement in light of the Confidential Information and/or goodwill that the Restricted Party has acquired, and (vii) the provisions of this Agreement are reasonable and necessary to protect and preserve the Alliqua Entities’ interests in and right to use and operate the Company’s business from and after Closing.
4. Non-Disclosure. The Restricted Party agrees not to dispute, contest, or deny any ownership rights of the Alliqua Entities of the Confidential Information or the Company Intellectual Property. The Restricted Party agrees to preserve and protect the confidentiality of all Confidential Information. The Restricted Party shall not directly or indirectly, disclose to any unauthorized person or use for the Restricted Party’s own account any Confidential Information. The Restricted Party shall hold all Confidential Information in the strictest confidence, and take all commercially reasonable precautions to prevent its inadvertent disclosure to any unauthorized person. The Restricted Party shall not, directly or indirectly, other than on behalf of the Alliqua Entities, utilize, disclose or make available to any other person or entity, any of the Confidential Information. Notwithstanding anything herein to the contrary, the covenants in this Section 4 shall not apply to Confidential Information that the Restricted Party is required to disclose by applicable Law, after providing written notice to the Alliqua Entities before producing the information, which notice shall be given as soon as practicable, so that the Alliqua Entities, at their sole expense, may seek a protective order or other appropriate remedy.
5. Non-Competition and Non-Solicitation. In exchange for the consideration contemplated under the Contribution and Merger Agreement and the consummation of the other transactions contemplated by the Contribution and Merger Agreement:
(a) During the Restricted Period, the Restricted Party shall not, directly or indirectly, own, manage, engage in, operate, control, work for, consult with, render services for, do business with, maintain any interest in (proprietary, financial or otherwise) or participate in the ownership, management, operation or control of, any business, whether in corporate, proprietorship or partnership form or otherwise, engage in the Restricted Business, other than on behalf of the Alliqua Entities; provided, that the restrictions contained in this Section 5(a) shall not restrict the acquisition by the Restricted Party, directly or indirectly, of less than 5% of the outstanding capital stock of any publicly traded company engaged in a Restricted Business.
(b) During the Restricted Period, the Restricted Party shall not, directly or indirectly, solicit, induce, recruit or encourage anyone who is a consultant or employee of the Company or the Alliqua Entities to terminate his or her employment or consulting relationship with the Company or the Alliqua Entities, or without the consent of the Alliqua Entities, hire, retain or engage any such person for the Restricted Party or for another Person or entity. Notwithstanding anything herein to the contrary, nothing in this Section 5(b) shall prevent the Restricted Party or any of its Affiliates from hiring, soliciting, inducing, recruiting or encouraging (i) any employee or consultant whose employment or consultancy has been terminated by the Company or the Alliqua Entities; or (ii) twelve (12) months after the date of termination of employment, any employee or consultant whose employment has been terminated by the employee or the consultant.
(c) During the Restricted Period, the Restricted Party shall not, directly or indirectly: (i) solicit business from, interfere with, attempt to solicit business from, interfere with, or do business with any actual or prospective customer or client with whom the Company or the Alliqua Entities does or has done business (including direct purchasers of the Company’s TheraSkin® product), in any case for the purpose of discussing or securing business or contracts related to the Restricted Business, or (ii) attempt to influence, encourage, persuade or induce any such actual or prospective customer or client whom the Company or the Alliqua Entities does or has done business to reduce the extent of its business dealings with the Alliqua Entities (including direct purchasers of the Company’s TheraSkin® product).
(d) The Restricted Party shall not, and shall cause any Affiliates not to, disparage or initiate negative publicity about the Company, the Alliqua Entities, or any of their respective employees, agents, business, policies, products, or services.
(e) If the Restricted Party violates any of the restrictions contained in this Article 5, the Restricted Period shall be suspended and shall not run in favor of the Restricted Party from the time of commencement of any violation until the time when the Restricted Party ceases the violation.
6. Remedies. The Restricted Party acknowledges that the restrictions contained herein, in view of the nature of the Company’s business and the businesses of the Alliqua Entities, are reasonable and necessary to protect their legitimate business interests, business goodwill and reputation, and that any violation of these restrictions would result in irreparable injury and continuing damage to them, and that money damages would not be a sufficient remedy for any such breach or threatened breach. Therefore, the Restricted Party agrees that the Alliqua Entities shall be entitled to seek a temporary restraining order and injunctive relief restraining the Restricted Party from the commission of any breach or threatened breach of any covenants herein, without the necessity of establishing irreparable harm or the posting of a bond, and to recover from the Restricted Party damages incurred, as well as the attorneys’ fees, costs and expenses related to any breach or threatened breach of this Agreement and enforcement of this Agreement. Nothing contained in this Agreement shall be construed as prohibiting the Alliqua Entities from pursuing any other remedies available to them for any breach or threatened breach, including, without limitation, the recovery of money damages, attorneys’ fees, and costs. The existence of any claim or cause of action by the Restricted Party, whether predicated on this Agreement or otherwise, shall not constitute a defense to the enforcement of the restrictive covenants contained herein, or preclude injunctive relief.
7. Assignment; Binding Agreement. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors and permitted assigns. The Restricted Party may not assign this Agreement to a third party. The Alliqua Entities may assign their rights, together with their obligations hereunder, to any Affiliates and/or subsidiary or any successor thereto or any purchaser of substantially all of their assets.
8. Reformation. The Restricted Party agrees that in the event any of the covenants contained herein shall be held by any court to be effective in any particular area or jurisdiction only if said covenant is modified to limit its duration or scope, then the court shall have such authority to so reform the covenant and the parties hereto shall consider such covenant(s) and/or other provisions to be amended and modified with respect to that particular area or jurisdiction so as to comply with the order of any such court and, as to all other jurisdictions, the covenants contained herein shall remain in full force and effect as originally written.
9. Partial Invalidity. In the event any court of competent jurisdiction holds any provision of this Agreement to be invalid or unenforceable, such invalid or unenforceable portion(s) shall be limited or excluded from this Agreement to the minimum extent required, and the remaining provisions shall not be affected or invalidated and shall remain in full force and effect.
10. Waiver. The rights and remedies of the parties to this Agreement are cumulative and without prejudice to any other rights or remedies under applicable law. Neither the failure nor any delay by any party in exercising any right, power or privilege under this Agreement will operate as a waiver of such right, power or privilege, and no single or partial exercise of any such right, power or privilege will preclude any other or further exercise of such right, power or privilege or the exercise of any other right, power or privilege. To the maximum extent permitted by applicable law, (a) no claim or right arising out of this Agreement can be discharged by one party, in whole or in part, by a waiver or renunciation of the claim or right unless in writing signed by the other party; (b) no waiver that may be given by a party will be applicable, except in the specific instance for which it is given; and (c) no notice or demand on one party will be deemed to be a waiver of any obligation of such party or of the right of the party giving such notice or demand to take further action without notice or demand as provided in this Agreement.
11. Entire Agreement. This Agreement, together with the Contribution and Merger Agreement, constitutes the entire agreement between the parties with respect to the subject matter hereof, and fully supersedes all prior and contemporaneous negotiations, promises, understandings, representations, writings, discussions and/or agreements between the parties, whether written or oral, pertaining to or concerning the subject matter of this Agreement. No oral statements or other prior written material not specifically incorporated into this Agreement shall be of any force or effect, and no changes in or additions to this Agreement shall be recognized, unless incorporated into this Agreement by written amendment, such amendment to become effective on the date stipulated in it. Any amendment to this Agreement must be signed by all parties to this Agreement.
12. Controlling Law and Venue. This Agreement shall be governed by and construed under the laws of the Commonwealth of Virginia. Venue of any litigation arising from this Agreement shall be in the United States District Court for the Eastern District of Virginia, or a state court of competent jurisdiction in Newport News, Virginia. The Restricted Party consents to personal jurisdiction of the United States District Court for the Eastern District of Virginia, or a state court of competent jurisdiction in Newport News, Virginia for any dispute relating to or arising out of this Agreement, and the Restricted Party agrees that the Restricted Party shall not challenge personal or subject matter jurisdiction in such courts.
13. Counterparts. This Agreement may be executed by the parties in multiple counterparts, whether or not all signatories appear on these counterparts (including via electronic signatures and exchange of PDF documents via email), each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
{Remainder of Page Intentionally Left Blank}
IN WITNESS WHEREOF, the parties have executed this Agreement, effective as of the Effective Date and subject to the consummation of the transactions contemplated by the Contribution and Merger Agreement.
THE RESTRICTED PARTY: Signature:
Printed Name:
Date:
THE COMPANIES: ALLIQUA HOLDINGS, INC
Signature:
Name:
Title:
Date:
ALLIQUA BIOMEDICAL, INC.
Signature:
Name:
Title:
Date:
Signature Page to Non-Competition and Non-Solicitation Agreement
| Not mentioned |
623_nda-2 | 623_nda-2_0 | Q: Confidential Information shall only include technical information.
Text: Exhibit 10.3
NON-COMPETITION AGREEMENT
WHEREAS, Alliqua BioMedical, Inc. (“Alliqua”), Alliqua Holdings, Inc., a Delaware corporation and a wholly-owned subsidiary of Alliqua (“Parent” and together with Alliqua, the “Alliqua Entities”), Chesapeake Merger Corp., a Delaware corporation and a wholly-owned subsidiary of Parent, and Soluble Systems, LLC, a Virginia limited liability company (the “Company”), have entered into that certain Contribution Agreement and Plan of Merger, dated as of October 5, 2016 (the “Contribution and Merger Agreement”);
WHEREAS, [●] (the “Restricted Party”) acknowledges that a material aspect of the Alliqua Entities’ decision to enter into the Contribution and Merger Agreement is the value and maintenance of the reputation and goodwill of the Company;
WHEREAS, as a material inducement to the Alliqua Entities to enter into the Contribution and Merger Agreement and consummate the transactions contemplated thereby, the Company has agreed that the Restricted Party shall execute this Agreement; and WHEREAS, the Contribution and Merger Agreement contemplates that the Restricted Party shall execute this Agreement;
NOW, THEREFORE, in consideration of the recitals and the covenants, representations, warranties, conditions and agreement hereinafter expressed, the Alliqua Entities and the Restricted Party agree as follows:
1. Effective Date. Subject to the Closing of the transactions contemplated by the Contribution and Merger Agreement, this Agreement shall be effective as of and on the Closing Date (the “Effective Date”).
2. Definitions. For all purposes under this Agreement, the following terms shall have the meaning set forth below. Any terms used but not otherwise defined herein shall have the respective meanings ascribed to them in the Contribution and Merger Agreement:
(a) “Confidential Information” includes any trade secrets or confidential or proprietary information of the Company, its Affiliates, and its and their respective predecessors and successors, including, but not limited to, the following: methods of operation, products, inventions, services, processes, equipment, know-how, technology, technical data, policies, strategies, designs, formulas, developmental or experimental work, improvements, discoveries, research, plans for research or future products and services, database schemas or tables, software, development tools or techniques, training procedures, training techniques, training manuals, business information, marketing and sales methods, plans and strategies, competitors, markets, market surveys, techniques, production processes, infrastructure, business plans, distribution and installation plans, processes and strategies, methodologies, budgets, financial data and information, customer and client information, prices and costs, fees, customer and client lists and profiles, employee, customer and client nonpublic personal information, supplier lists, business records, product construction, product specifications, audit processes, pricing strategies, business strategies, marketing and promotional practices, management methods and information, plans, reports, recommendations and conclusions, information regarding the skills and compensation of employees and contractors, and other business information disclosed to the Restricted Party by the Company, either directly or indirectly, in writing, orally, or by drawings or observation. “Confidential Information” does not include, and there shall be no obligation hereunder with respect to, information that: (i) is generally available to the public on the date of this Agreement; (ii) becomes generally available to the public other than as a result of a disclosure not otherwise permissible hereunder, (iii) was available, or becomes available, to the Restricted Party from a source other than the Alliqua Entities or its Representatives, provided that such source, to the Restricted Party’s actual knowledge after reasonable inquiry, was lawfully permitted to disclose such information; or (iv) has been independently acquired or developed by the Restricted Party without violating any of the Restricted Party’s obligations under this Agreement or otherwise owed to the Alliqua Entities or its Representatives.
(b) “Restricted Business” shall mean the business of providing a skin substitute for chronic wound care.
(c) “Restricted Period” shall mean a period commencing from the Effective Date until the two (2)-year anniversary of the Effective Date.
3. Acknowledgement.
(a) This Agreement is entered into in connection with the transactions contemplated by the Contribution and Merger Agreement. The parties acknowledge that it would be detrimental to the Alliqua Entities if the Restricted Party were to compete with the Alliqua Entities any time during the Restricted Period or to solicit customers, clients, employees or contractors of the Company or Alliqua Entities at any time during the Restricted Period.
(b) The Restricted Party recognizes that the covenants set forth herein are an essential part of the transactions contemplated by the Contribution and Merger Agreement and that but for the agreement of the Restricted Party to comply with such covenants, the Alliqua Entities would not enter into the Contribution and Merger Agreement. The Restricted Party acknowledges and agrees that the covenants set forth herein are necessary to protect the legitimate business interests of the Alliqua Entities acquired pursuant to the Contribution and Merger Agreement. In addition, the Restricted Party acknowledges that the consideration paid pursuant to the terms of the Contribution and Merger Agreement is paid in part as consideration for customer and client contacts, marketplace reputation and goodwill developed by the Restricted Party for the Company and the covenants set forth herein are necessary for the Alliqua Entities to receive the full benefit of the Contribution and Merger Agreement.
(c) The Restricted Party hereby acknowledges the broad territorial scope of the covenants contained in this Agreement, but acknowledges and agrees that the restrictions are reasonable and enforceable in view of, among other things, (i) the narrow range of activities prohibited, (ii) the Company’s products and services are marketed on a wide geographic scope, (iii) the Confidential Information of the Company to which the Restricted Party had, has or will have access, (iv) the fact that a business that competes with Alliqua Entities could greatly benefit if it were to obtain the Confidential Information of the Company, (v) the Alliqua Entities acquisition of the Company Intellectual Property and goodwill of the Company pursuant to the transactions contemplated by the Contribution and Merger Agreement, (vi) the fact that the Restricted Party would have an unfair competitive advantage if the Restricted Party were allowed to engage in the competitive activities prohibited by this Agreement in light of the Confidential Information and/or goodwill that the Restricted Party has acquired, and (vii) the provisions of this Agreement are reasonable and necessary to protect and preserve the Alliqua Entities’ interests in and right to use and operate the Company’s business from and after Closing.
4. Non-Disclosure. The Restricted Party agrees not to dispute, contest, or deny any ownership rights of the Alliqua Entities of the Confidential Information or the Company Intellectual Property. The Restricted Party agrees to preserve and protect the confidentiality of all Confidential Information. The Restricted Party shall not directly or indirectly, disclose to any unauthorized person or use for the Restricted Party’s own account any Confidential Information. The Restricted Party shall hold all Confidential Information in the strictest confidence, and take all commercially reasonable precautions to prevent its inadvertent disclosure to any unauthorized person. The Restricted Party shall not, directly or indirectly, other than on behalf of the Alliqua Entities, utilize, disclose or make available to any other person or entity, any of the Confidential Information. Notwithstanding anything herein to the contrary, the covenants in this Section 4 shall not apply to Confidential Information that the Restricted Party is required to disclose by applicable Law, after providing written notice to the Alliqua Entities before producing the information, which notice shall be given as soon as practicable, so that the Alliqua Entities, at their sole expense, may seek a protective order or other appropriate remedy.
5. Non-Competition and Non-Solicitation. In exchange for the consideration contemplated under the Contribution and Merger Agreement and the consummation of the other transactions contemplated by the Contribution and Merger Agreement:
(a) During the Restricted Period, the Restricted Party shall not, directly or indirectly, own, manage, engage in, operate, control, work for, consult with, render services for, do business with, maintain any interest in (proprietary, financial or otherwise) or participate in the ownership, management, operation or control of, any business, whether in corporate, proprietorship or partnership form or otherwise, engage in the Restricted Business, other than on behalf of the Alliqua Entities; provided, that the restrictions contained in this Section 5(a) shall not restrict the acquisition by the Restricted Party, directly or indirectly, of less than 5% of the outstanding capital stock of any publicly traded company engaged in a Restricted Business.
(b) During the Restricted Period, the Restricted Party shall not, directly or indirectly, solicit, induce, recruit or encourage anyone who is a consultant or employee of the Company or the Alliqua Entities to terminate his or her employment or consulting relationship with the Company or the Alliqua Entities, or without the consent of the Alliqua Entities, hire, retain or engage any such person for the Restricted Party or for another Person or entity. Notwithstanding anything herein to the contrary, nothing in this Section 5(b) shall prevent the Restricted Party or any of its Affiliates from hiring, soliciting, inducing, recruiting or encouraging (i) any employee or consultant whose employment or consultancy has been terminated by the Company or the Alliqua Entities; or (ii) twelve (12) months after the date of termination of employment, any employee or consultant whose employment has been terminated by the employee or the consultant.
(c) During the Restricted Period, the Restricted Party shall not, directly or indirectly: (i) solicit business from, interfere with, attempt to solicit business from, interfere with, or do business with any actual or prospective customer or client with whom the Company or the Alliqua Entities does or has done business (including direct purchasers of the Company’s TheraSkin® product), in any case for the purpose of discussing or securing business or contracts related to the Restricted Business, or (ii) attempt to influence, encourage, persuade or induce any such actual or prospective customer or client whom the Company or the Alliqua Entities does or has done business to reduce the extent of its business dealings with the Alliqua Entities (including direct purchasers of the Company’s TheraSkin® product).
(d) The Restricted Party shall not, and shall cause any Affiliates not to, disparage or initiate negative publicity about the Company, the Alliqua Entities, or any of their respective employees, agents, business, policies, products, or services.
(e) If the Restricted Party violates any of the restrictions contained in this Article 5, the Restricted Period shall be suspended and shall not run in favor of the Restricted Party from the time of commencement of any violation until the time when the Restricted Party ceases the violation.
6. Remedies. The Restricted Party acknowledges that the restrictions contained herein, in view of the nature of the Company’s business and the businesses of the Alliqua Entities, are reasonable and necessary to protect their legitimate business interests, business goodwill and reputation, and that any violation of these restrictions would result in irreparable injury and continuing damage to them, and that money damages would not be a sufficient remedy for any such breach or threatened breach. Therefore, the Restricted Party agrees that the Alliqua Entities shall be entitled to seek a temporary restraining order and injunctive relief restraining the Restricted Party from the commission of any breach or threatened breach of any covenants herein, without the necessity of establishing irreparable harm or the posting of a bond, and to recover from the Restricted Party damages incurred, as well as the attorneys’ fees, costs and expenses related to any breach or threatened breach of this Agreement and enforcement of this Agreement. Nothing contained in this Agreement shall be construed as prohibiting the Alliqua Entities from pursuing any other remedies available to them for any breach or threatened breach, including, without limitation, the recovery of money damages, attorneys’ fees, and costs. The existence of any claim or cause of action by the Restricted Party, whether predicated on this Agreement or otherwise, shall not constitute a defense to the enforcement of the restrictive covenants contained herein, or preclude injunctive relief.
7. Assignment; Binding Agreement. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors and permitted assigns. The Restricted Party may not assign this Agreement to a third party. The Alliqua Entities may assign their rights, together with their obligations hereunder, to any Affiliates and/or subsidiary or any successor thereto or any purchaser of substantially all of their assets.
8. Reformation. The Restricted Party agrees that in the event any of the covenants contained herein shall be held by any court to be effective in any particular area or jurisdiction only if said covenant is modified to limit its duration or scope, then the court shall have such authority to so reform the covenant and the parties hereto shall consider such covenant(s) and/or other provisions to be amended and modified with respect to that particular area or jurisdiction so as to comply with the order of any such court and, as to all other jurisdictions, the covenants contained herein shall remain in full force and effect as originally written.
9. Partial Invalidity. In the event any court of competent jurisdiction holds any provision of this Agreement to be invalid or unenforceable, such invalid or unenforceable portion(s) shall be limited or excluded from this Agreement to the minimum extent required, and the remaining provisions shall not be affected or invalidated and shall remain in full force and effect.
10. Waiver. The rights and remedies of the parties to this Agreement are cumulative and without prejudice to any other rights or remedies under applicable law. Neither the failure nor any delay by any party in exercising any right, power or privilege under this Agreement will operate as a waiver of such right, power or privilege, and no single or partial exercise of any such right, power or privilege will preclude any other or further exercise of such right, power or privilege or the exercise of any other right, power or privilege. To the maximum extent permitted by applicable law, (a) no claim or right arising out of this Agreement can be discharged by one party, in whole or in part, by a waiver or renunciation of the claim or right unless in writing signed by the other party; (b) no waiver that may be given by a party will be applicable, except in the specific instance for which it is given; and (c) no notice or demand on one party will be deemed to be a waiver of any obligation of such party or of the right of the party giving such notice or demand to take further action without notice or demand as provided in this Agreement.
11. Entire Agreement. This Agreement, together with the Contribution and Merger Agreement, constitutes the entire agreement between the parties with respect to the subject matter hereof, and fully supersedes all prior and contemporaneous negotiations, promises, understandings, representations, writings, discussions and/or agreements between the parties, whether written or oral, pertaining to or concerning the subject matter of this Agreement. No oral statements or other prior written material not specifically incorporated into this Agreement shall be of any force or effect, and no changes in or additions to this Agreement shall be recognized, unless incorporated into this Agreement by written amendment, such amendment to become effective on the date stipulated in it. Any amendment to this Agreement must be signed by all parties to this Agreement.
12. Controlling Law and Venue. This Agreement shall be governed by and construed under the laws of the Commonwealth of Virginia. Venue of any litigation arising from this Agreement shall be in the United States District Court for the Eastern District of Virginia, or a state court of competent jurisdiction in Newport News, Virginia. The Restricted Party consents to personal jurisdiction of the United States District Court for the Eastern District of Virginia, or a state court of competent jurisdiction in Newport News, Virginia for any dispute relating to or arising out of this Agreement, and the Restricted Party agrees that the Restricted Party shall not challenge personal or subject matter jurisdiction in such courts.
13. Counterparts. This Agreement may be executed by the parties in multiple counterparts, whether or not all signatories appear on these counterparts (including via electronic signatures and exchange of PDF documents via email), each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
{Remainder of Page Intentionally Left Blank}
IN WITNESS WHEREOF, the parties have executed this Agreement, effective as of the Effective Date and subject to the consummation of the transactions contemplated by the Contribution and Merger Agreement.
THE RESTRICTED PARTY: Signature:
Printed Name:
Date:
THE COMPANIES: ALLIQUA HOLDINGS, INC
Signature:
Name:
Title:
Date:
ALLIQUA BIOMEDICAL, INC.
Signature:
Name:
Title:
Date:
Signature Page to Non-Competition and Non-Solicitation Agreement
| Contradiction |
623_nda-1 | 623_nda-1_0 | Q: All Confidential Information shall be expressly identified by the Disclosing Party.
Text: Exhibit 10.3
NON-COMPETITION AGREEMENT
WHEREAS, Alliqua BioMedical, Inc. (“Alliqua”), Alliqua Holdings, Inc., a Delaware corporation and a wholly-owned subsidiary of Alliqua (“Parent” and together with Alliqua, the “Alliqua Entities”), Chesapeake Merger Corp., a Delaware corporation and a wholly-owned subsidiary of Parent, and Soluble Systems, LLC, a Virginia limited liability company (the “Company”), have entered into that certain Contribution Agreement and Plan of Merger, dated as of October 5, 2016 (the “Contribution and Merger Agreement”);
WHEREAS, [●] (the “Restricted Party”) acknowledges that a material aspect of the Alliqua Entities’ decision to enter into the Contribution and Merger Agreement is the value and maintenance of the reputation and goodwill of the Company;
WHEREAS, as a material inducement to the Alliqua Entities to enter into the Contribution and Merger Agreement and consummate the transactions contemplated thereby, the Company has agreed that the Restricted Party shall execute this Agreement; and WHEREAS, the Contribution and Merger Agreement contemplates that the Restricted Party shall execute this Agreement;
NOW, THEREFORE, in consideration of the recitals and the covenants, representations, warranties, conditions and agreement hereinafter expressed, the Alliqua Entities and the Restricted Party agree as follows:
1. Effective Date. Subject to the Closing of the transactions contemplated by the Contribution and Merger Agreement, this Agreement shall be effective as of and on the Closing Date (the “Effective Date”).
2. Definitions. For all purposes under this Agreement, the following terms shall have the meaning set forth below. Any terms used but not otherwise defined herein shall have the respective meanings ascribed to them in the Contribution and Merger Agreement:
(a) “Confidential Information” includes any trade secrets or confidential or proprietary information of the Company, its Affiliates, and its and their respective predecessors and successors, including, but not limited to, the following: methods of operation, products, inventions, services, processes, equipment, know-how, technology, technical data, policies, strategies, designs, formulas, developmental or experimental work, improvements, discoveries, research, plans for research or future products and services, database schemas or tables, software, development tools or techniques, training procedures, training techniques, training manuals, business information, marketing and sales methods, plans and strategies, competitors, markets, market surveys, techniques, production processes, infrastructure, business plans, distribution and installation plans, processes and strategies, methodologies, budgets, financial data and information, customer and client information, prices and costs, fees, customer and client lists and profiles, employee, customer and client nonpublic personal information, supplier lists, business records, product construction, product specifications, audit processes, pricing strategies, business strategies, marketing and promotional practices, management methods and information, plans, reports, recommendations and conclusions, information regarding the skills and compensation of employees and contractors, and other business information disclosed to the Restricted Party by the Company, either directly or indirectly, in writing, orally, or by drawings or observation. “Confidential Information” does not include, and there shall be no obligation hereunder with respect to, information that: (i) is generally available to the public on the date of this Agreement; (ii) becomes generally available to the public other than as a result of a disclosure not otherwise permissible hereunder, (iii) was available, or becomes available, to the Restricted Party from a source other than the Alliqua Entities or its Representatives, provided that such source, to the Restricted Party’s actual knowledge after reasonable inquiry, was lawfully permitted to disclose such information; or (iv) has been independently acquired or developed by the Restricted Party without violating any of the Restricted Party’s obligations under this Agreement or otherwise owed to the Alliqua Entities or its Representatives.
(b) “Restricted Business” shall mean the business of providing a skin substitute for chronic wound care.
(c) “Restricted Period” shall mean a period commencing from the Effective Date until the two (2)-year anniversary of the Effective Date.
3. Acknowledgement.
(a) This Agreement is entered into in connection with the transactions contemplated by the Contribution and Merger Agreement. The parties acknowledge that it would be detrimental to the Alliqua Entities if the Restricted Party were to compete with the Alliqua Entities any time during the Restricted Period or to solicit customers, clients, employees or contractors of the Company or Alliqua Entities at any time during the Restricted Period.
(b) The Restricted Party recognizes that the covenants set forth herein are an essential part of the transactions contemplated by the Contribution and Merger Agreement and that but for the agreement of the Restricted Party to comply with such covenants, the Alliqua Entities would not enter into the Contribution and Merger Agreement. The Restricted Party acknowledges and agrees that the covenants set forth herein are necessary to protect the legitimate business interests of the Alliqua Entities acquired pursuant to the Contribution and Merger Agreement. In addition, the Restricted Party acknowledges that the consideration paid pursuant to the terms of the Contribution and Merger Agreement is paid in part as consideration for customer and client contacts, marketplace reputation and goodwill developed by the Restricted Party for the Company and the covenants set forth herein are necessary for the Alliqua Entities to receive the full benefit of the Contribution and Merger Agreement.
(c) The Restricted Party hereby acknowledges the broad territorial scope of the covenants contained in this Agreement, but acknowledges and agrees that the restrictions are reasonable and enforceable in view of, among other things, (i) the narrow range of activities prohibited, (ii) the Company’s products and services are marketed on a wide geographic scope, (iii) the Confidential Information of the Company to which the Restricted Party had, has or will have access, (iv) the fact that a business that competes with Alliqua Entities could greatly benefit if it were to obtain the Confidential Information of the Company, (v) the Alliqua Entities acquisition of the Company Intellectual Property and goodwill of the Company pursuant to the transactions contemplated by the Contribution and Merger Agreement, (vi) the fact that the Restricted Party would have an unfair competitive advantage if the Restricted Party were allowed to engage in the competitive activities prohibited by this Agreement in light of the Confidential Information and/or goodwill that the Restricted Party has acquired, and (vii) the provisions of this Agreement are reasonable and necessary to protect and preserve the Alliqua Entities’ interests in and right to use and operate the Company’s business from and after Closing.
4. Non-Disclosure. The Restricted Party agrees not to dispute, contest, or deny any ownership rights of the Alliqua Entities of the Confidential Information or the Company Intellectual Property. The Restricted Party agrees to preserve and protect the confidentiality of all Confidential Information. The Restricted Party shall not directly or indirectly, disclose to any unauthorized person or use for the Restricted Party’s own account any Confidential Information. The Restricted Party shall hold all Confidential Information in the strictest confidence, and take all commercially reasonable precautions to prevent its inadvertent disclosure to any unauthorized person. The Restricted Party shall not, directly or indirectly, other than on behalf of the Alliqua Entities, utilize, disclose or make available to any other person or entity, any of the Confidential Information. Notwithstanding anything herein to the contrary, the covenants in this Section 4 shall not apply to Confidential Information that the Restricted Party is required to disclose by applicable Law, after providing written notice to the Alliqua Entities before producing the information, which notice shall be given as soon as practicable, so that the Alliqua Entities, at their sole expense, may seek a protective order or other appropriate remedy.
5. Non-Competition and Non-Solicitation. In exchange for the consideration contemplated under the Contribution and Merger Agreement and the consummation of the other transactions contemplated by the Contribution and Merger Agreement:
(a) During the Restricted Period, the Restricted Party shall not, directly or indirectly, own, manage, engage in, operate, control, work for, consult with, render services for, do business with, maintain any interest in (proprietary, financial or otherwise) or participate in the ownership, management, operation or control of, any business, whether in corporate, proprietorship or partnership form or otherwise, engage in the Restricted Business, other than on behalf of the Alliqua Entities; provided, that the restrictions contained in this Section 5(a) shall not restrict the acquisition by the Restricted Party, directly or indirectly, of less than 5% of the outstanding capital stock of any publicly traded company engaged in a Restricted Business.
(b) During the Restricted Period, the Restricted Party shall not, directly or indirectly, solicit, induce, recruit or encourage anyone who is a consultant or employee of the Company or the Alliqua Entities to terminate his or her employment or consulting relationship with the Company or the Alliqua Entities, or without the consent of the Alliqua Entities, hire, retain or engage any such person for the Restricted Party or for another Person or entity. Notwithstanding anything herein to the contrary, nothing in this Section 5(b) shall prevent the Restricted Party or any of its Affiliates from hiring, soliciting, inducing, recruiting or encouraging (i) any employee or consultant whose employment or consultancy has been terminated by the Company or the Alliqua Entities; or (ii) twelve (12) months after the date of termination of employment, any employee or consultant whose employment has been terminated by the employee or the consultant.
(c) During the Restricted Period, the Restricted Party shall not, directly or indirectly: (i) solicit business from, interfere with, attempt to solicit business from, interfere with, or do business with any actual or prospective customer or client with whom the Company or the Alliqua Entities does or has done business (including direct purchasers of the Company’s TheraSkin® product), in any case for the purpose of discussing or securing business or contracts related to the Restricted Business, or (ii) attempt to influence, encourage, persuade or induce any such actual or prospective customer or client whom the Company or the Alliqua Entities does or has done business to reduce the extent of its business dealings with the Alliqua Entities (including direct purchasers of the Company’s TheraSkin® product).
(d) The Restricted Party shall not, and shall cause any Affiliates not to, disparage or initiate negative publicity about the Company, the Alliqua Entities, or any of their respective employees, agents, business, policies, products, or services.
(e) If the Restricted Party violates any of the restrictions contained in this Article 5, the Restricted Period shall be suspended and shall not run in favor of the Restricted Party from the time of commencement of any violation until the time when the Restricted Party ceases the violation.
6. Remedies. The Restricted Party acknowledges that the restrictions contained herein, in view of the nature of the Company’s business and the businesses of the Alliqua Entities, are reasonable and necessary to protect their legitimate business interests, business goodwill and reputation, and that any violation of these restrictions would result in irreparable injury and continuing damage to them, and that money damages would not be a sufficient remedy for any such breach or threatened breach. Therefore, the Restricted Party agrees that the Alliqua Entities shall be entitled to seek a temporary restraining order and injunctive relief restraining the Restricted Party from the commission of any breach or threatened breach of any covenants herein, without the necessity of establishing irreparable harm or the posting of a bond, and to recover from the Restricted Party damages incurred, as well as the attorneys’ fees, costs and expenses related to any breach or threatened breach of this Agreement and enforcement of this Agreement. Nothing contained in this Agreement shall be construed as prohibiting the Alliqua Entities from pursuing any other remedies available to them for any breach or threatened breach, including, without limitation, the recovery of money damages, attorneys’ fees, and costs. The existence of any claim or cause of action by the Restricted Party, whether predicated on this Agreement or otherwise, shall not constitute a defense to the enforcement of the restrictive covenants contained herein, or preclude injunctive relief.
7. Assignment; Binding Agreement. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors and permitted assigns. The Restricted Party may not assign this Agreement to a third party. The Alliqua Entities may assign their rights, together with their obligations hereunder, to any Affiliates and/or subsidiary or any successor thereto or any purchaser of substantially all of their assets.
8. Reformation. The Restricted Party agrees that in the event any of the covenants contained herein shall be held by any court to be effective in any particular area or jurisdiction only if said covenant is modified to limit its duration or scope, then the court shall have such authority to so reform the covenant and the parties hereto shall consider such covenant(s) and/or other provisions to be amended and modified with respect to that particular area or jurisdiction so as to comply with the order of any such court and, as to all other jurisdictions, the covenants contained herein shall remain in full force and effect as originally written.
9. Partial Invalidity. In the event any court of competent jurisdiction holds any provision of this Agreement to be invalid or unenforceable, such invalid or unenforceable portion(s) shall be limited or excluded from this Agreement to the minimum extent required, and the remaining provisions shall not be affected or invalidated and shall remain in full force and effect.
10. Waiver. The rights and remedies of the parties to this Agreement are cumulative and without prejudice to any other rights or remedies under applicable law. Neither the failure nor any delay by any party in exercising any right, power or privilege under this Agreement will operate as a waiver of such right, power or privilege, and no single or partial exercise of any such right, power or privilege will preclude any other or further exercise of such right, power or privilege or the exercise of any other right, power or privilege. To the maximum extent permitted by applicable law, (a) no claim or right arising out of this Agreement can be discharged by one party, in whole or in part, by a waiver or renunciation of the claim or right unless in writing signed by the other party; (b) no waiver that may be given by a party will be applicable, except in the specific instance for which it is given; and (c) no notice or demand on one party will be deemed to be a waiver of any obligation of such party or of the right of the party giving such notice or demand to take further action without notice or demand as provided in this Agreement.
11. Entire Agreement. This Agreement, together with the Contribution and Merger Agreement, constitutes the entire agreement between the parties with respect to the subject matter hereof, and fully supersedes all prior and contemporaneous negotiations, promises, understandings, representations, writings, discussions and/or agreements between the parties, whether written or oral, pertaining to or concerning the subject matter of this Agreement. No oral statements or other prior written material not specifically incorporated into this Agreement shall be of any force or effect, and no changes in or additions to this Agreement shall be recognized, unless incorporated into this Agreement by written amendment, such amendment to become effective on the date stipulated in it. Any amendment to this Agreement must be signed by all parties to this Agreement.
12. Controlling Law and Venue. This Agreement shall be governed by and construed under the laws of the Commonwealth of Virginia. Venue of any litigation arising from this Agreement shall be in the United States District Court for the Eastern District of Virginia, or a state court of competent jurisdiction in Newport News, Virginia. The Restricted Party consents to personal jurisdiction of the United States District Court for the Eastern District of Virginia, or a state court of competent jurisdiction in Newport News, Virginia for any dispute relating to or arising out of this Agreement, and the Restricted Party agrees that the Restricted Party shall not challenge personal or subject matter jurisdiction in such courts.
13. Counterparts. This Agreement may be executed by the parties in multiple counterparts, whether or not all signatories appear on these counterparts (including via electronic signatures and exchange of PDF documents via email), each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
{Remainder of Page Intentionally Left Blank}
IN WITNESS WHEREOF, the parties have executed this Agreement, effective as of the Effective Date and subject to the consummation of the transactions contemplated by the Contribution and Merger Agreement.
THE RESTRICTED PARTY: Signature:
Printed Name:
Date:
THE COMPANIES: ALLIQUA HOLDINGS, INC
Signature:
Name:
Title:
Date:
ALLIQUA BIOMEDICAL, INC.
Signature:
Name:
Title:
Date:
Signature Page to Non-Competition and Non-Solicitation Agreement
| Not mentioned |
623_nda-19 | 623_nda-19_0 | Q: Some obligations of Agreement may survive termination of Agreement.
Text: Exhibit 10.3
NON-COMPETITION AGREEMENT
WHEREAS, Alliqua BioMedical, Inc. (“Alliqua”), Alliqua Holdings, Inc., a Delaware corporation and a wholly-owned subsidiary of Alliqua (“Parent” and together with Alliqua, the “Alliqua Entities”), Chesapeake Merger Corp., a Delaware corporation and a wholly-owned subsidiary of Parent, and Soluble Systems, LLC, a Virginia limited liability company (the “Company”), have entered into that certain Contribution Agreement and Plan of Merger, dated as of October 5, 2016 (the “Contribution and Merger Agreement”);
WHEREAS, [●] (the “Restricted Party”) acknowledges that a material aspect of the Alliqua Entities’ decision to enter into the Contribution and Merger Agreement is the value and maintenance of the reputation and goodwill of the Company;
WHEREAS, as a material inducement to the Alliqua Entities to enter into the Contribution and Merger Agreement and consummate the transactions contemplated thereby, the Company has agreed that the Restricted Party shall execute this Agreement; and WHEREAS, the Contribution and Merger Agreement contemplates that the Restricted Party shall execute this Agreement;
NOW, THEREFORE, in consideration of the recitals and the covenants, representations, warranties, conditions and agreement hereinafter expressed, the Alliqua Entities and the Restricted Party agree as follows:
1. Effective Date. Subject to the Closing of the transactions contemplated by the Contribution and Merger Agreement, this Agreement shall be effective as of and on the Closing Date (the “Effective Date”).
2. Definitions. For all purposes under this Agreement, the following terms shall have the meaning set forth below. Any terms used but not otherwise defined herein shall have the respective meanings ascribed to them in the Contribution and Merger Agreement:
(a) “Confidential Information” includes any trade secrets or confidential or proprietary information of the Company, its Affiliates, and its and their respective predecessors and successors, including, but not limited to, the following: methods of operation, products, inventions, services, processes, equipment, know-how, technology, technical data, policies, strategies, designs, formulas, developmental or experimental work, improvements, discoveries, research, plans for research or future products and services, database schemas or tables, software, development tools or techniques, training procedures, training techniques, training manuals, business information, marketing and sales methods, plans and strategies, competitors, markets, market surveys, techniques, production processes, infrastructure, business plans, distribution and installation plans, processes and strategies, methodologies, budgets, financial data and information, customer and client information, prices and costs, fees, customer and client lists and profiles, employee, customer and client nonpublic personal information, supplier lists, business records, product construction, product specifications, audit processes, pricing strategies, business strategies, marketing and promotional practices, management methods and information, plans, reports, recommendations and conclusions, information regarding the skills and compensation of employees and contractors, and other business information disclosed to the Restricted Party by the Company, either directly or indirectly, in writing, orally, or by drawings or observation. “Confidential Information” does not include, and there shall be no obligation hereunder with respect to, information that: (i) is generally available to the public on the date of this Agreement; (ii) becomes generally available to the public other than as a result of a disclosure not otherwise permissible hereunder, (iii) was available, or becomes available, to the Restricted Party from a source other than the Alliqua Entities or its Representatives, provided that such source, to the Restricted Party’s actual knowledge after reasonable inquiry, was lawfully permitted to disclose such information; or (iv) has been independently acquired or developed by the Restricted Party without violating any of the Restricted Party’s obligations under this Agreement or otherwise owed to the Alliqua Entities or its Representatives.
(b) “Restricted Business” shall mean the business of providing a skin substitute for chronic wound care.
(c) “Restricted Period” shall mean a period commencing from the Effective Date until the two (2)-year anniversary of the Effective Date.
3. Acknowledgement.
(a) This Agreement is entered into in connection with the transactions contemplated by the Contribution and Merger Agreement. The parties acknowledge that it would be detrimental to the Alliqua Entities if the Restricted Party were to compete with the Alliqua Entities any time during the Restricted Period or to solicit customers, clients, employees or contractors of the Company or Alliqua Entities at any time during the Restricted Period.
(b) The Restricted Party recognizes that the covenants set forth herein are an essential part of the transactions contemplated by the Contribution and Merger Agreement and that but for the agreement of the Restricted Party to comply with such covenants, the Alliqua Entities would not enter into the Contribution and Merger Agreement. The Restricted Party acknowledges and agrees that the covenants set forth herein are necessary to protect the legitimate business interests of the Alliqua Entities acquired pursuant to the Contribution and Merger Agreement. In addition, the Restricted Party acknowledges that the consideration paid pursuant to the terms of the Contribution and Merger Agreement is paid in part as consideration for customer and client contacts, marketplace reputation and goodwill developed by the Restricted Party for the Company and the covenants set forth herein are necessary for the Alliqua Entities to receive the full benefit of the Contribution and Merger Agreement.
(c) The Restricted Party hereby acknowledges the broad territorial scope of the covenants contained in this Agreement, but acknowledges and agrees that the restrictions are reasonable and enforceable in view of, among other things, (i) the narrow range of activities prohibited, (ii) the Company’s products and services are marketed on a wide geographic scope, (iii) the Confidential Information of the Company to which the Restricted Party had, has or will have access, (iv) the fact that a business that competes with Alliqua Entities could greatly benefit if it were to obtain the Confidential Information of the Company, (v) the Alliqua Entities acquisition of the Company Intellectual Property and goodwill of the Company pursuant to the transactions contemplated by the Contribution and Merger Agreement, (vi) the fact that the Restricted Party would have an unfair competitive advantage if the Restricted Party were allowed to engage in the competitive activities prohibited by this Agreement in light of the Confidential Information and/or goodwill that the Restricted Party has acquired, and (vii) the provisions of this Agreement are reasonable and necessary to protect and preserve the Alliqua Entities’ interests in and right to use and operate the Company’s business from and after Closing.
4. Non-Disclosure. The Restricted Party agrees not to dispute, contest, or deny any ownership rights of the Alliqua Entities of the Confidential Information or the Company Intellectual Property. The Restricted Party agrees to preserve and protect the confidentiality of all Confidential Information. The Restricted Party shall not directly or indirectly, disclose to any unauthorized person or use for the Restricted Party’s own account any Confidential Information. The Restricted Party shall hold all Confidential Information in the strictest confidence, and take all commercially reasonable precautions to prevent its inadvertent disclosure to any unauthorized person. The Restricted Party shall not, directly or indirectly, other than on behalf of the Alliqua Entities, utilize, disclose or make available to any other person or entity, any of the Confidential Information. Notwithstanding anything herein to the contrary, the covenants in this Section 4 shall not apply to Confidential Information that the Restricted Party is required to disclose by applicable Law, after providing written notice to the Alliqua Entities before producing the information, which notice shall be given as soon as practicable, so that the Alliqua Entities, at their sole expense, may seek a protective order or other appropriate remedy.
5. Non-Competition and Non-Solicitation. In exchange for the consideration contemplated under the Contribution and Merger Agreement and the consummation of the other transactions contemplated by the Contribution and Merger Agreement:
(a) During the Restricted Period, the Restricted Party shall not, directly or indirectly, own, manage, engage in, operate, control, work for, consult with, render services for, do business with, maintain any interest in (proprietary, financial or otherwise) or participate in the ownership, management, operation or control of, any business, whether in corporate, proprietorship or partnership form or otherwise, engage in the Restricted Business, other than on behalf of the Alliqua Entities; provided, that the restrictions contained in this Section 5(a) shall not restrict the acquisition by the Restricted Party, directly or indirectly, of less than 5% of the outstanding capital stock of any publicly traded company engaged in a Restricted Business.
(b) During the Restricted Period, the Restricted Party shall not, directly or indirectly, solicit, induce, recruit or encourage anyone who is a consultant or employee of the Company or the Alliqua Entities to terminate his or her employment or consulting relationship with the Company or the Alliqua Entities, or without the consent of the Alliqua Entities, hire, retain or engage any such person for the Restricted Party or for another Person or entity. Notwithstanding anything herein to the contrary, nothing in this Section 5(b) shall prevent the Restricted Party or any of its Affiliates from hiring, soliciting, inducing, recruiting or encouraging (i) any employee or consultant whose employment or consultancy has been terminated by the Company or the Alliqua Entities; or (ii) twelve (12) months after the date of termination of employment, any employee or consultant whose employment has been terminated by the employee or the consultant.
(c) During the Restricted Period, the Restricted Party shall not, directly or indirectly: (i) solicit business from, interfere with, attempt to solicit business from, interfere with, or do business with any actual or prospective customer or client with whom the Company or the Alliqua Entities does or has done business (including direct purchasers of the Company’s TheraSkin® product), in any case for the purpose of discussing or securing business or contracts related to the Restricted Business, or (ii) attempt to influence, encourage, persuade or induce any such actual or prospective customer or client whom the Company or the Alliqua Entities does or has done business to reduce the extent of its business dealings with the Alliqua Entities (including direct purchasers of the Company’s TheraSkin® product).
(d) The Restricted Party shall not, and shall cause any Affiliates not to, disparage or initiate negative publicity about the Company, the Alliqua Entities, or any of their respective employees, agents, business, policies, products, or services.
(e) If the Restricted Party violates any of the restrictions contained in this Article 5, the Restricted Period shall be suspended and shall not run in favor of the Restricted Party from the time of commencement of any violation until the time when the Restricted Party ceases the violation.
6. Remedies. The Restricted Party acknowledges that the restrictions contained herein, in view of the nature of the Company’s business and the businesses of the Alliqua Entities, are reasonable and necessary to protect their legitimate business interests, business goodwill and reputation, and that any violation of these restrictions would result in irreparable injury and continuing damage to them, and that money damages would not be a sufficient remedy for any such breach or threatened breach. Therefore, the Restricted Party agrees that the Alliqua Entities shall be entitled to seek a temporary restraining order and injunctive relief restraining the Restricted Party from the commission of any breach or threatened breach of any covenants herein, without the necessity of establishing irreparable harm or the posting of a bond, and to recover from the Restricted Party damages incurred, as well as the attorneys’ fees, costs and expenses related to any breach or threatened breach of this Agreement and enforcement of this Agreement. Nothing contained in this Agreement shall be construed as prohibiting the Alliqua Entities from pursuing any other remedies available to them for any breach or threatened breach, including, without limitation, the recovery of money damages, attorneys’ fees, and costs. The existence of any claim or cause of action by the Restricted Party, whether predicated on this Agreement or otherwise, shall not constitute a defense to the enforcement of the restrictive covenants contained herein, or preclude injunctive relief.
7. Assignment; Binding Agreement. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors and permitted assigns. The Restricted Party may not assign this Agreement to a third party. The Alliqua Entities may assign their rights, together with their obligations hereunder, to any Affiliates and/or subsidiary or any successor thereto or any purchaser of substantially all of their assets.
8. Reformation. The Restricted Party agrees that in the event any of the covenants contained herein shall be held by any court to be effective in any particular area or jurisdiction only if said covenant is modified to limit its duration or scope, then the court shall have such authority to so reform the covenant and the parties hereto shall consider such covenant(s) and/or other provisions to be amended and modified with respect to that particular area or jurisdiction so as to comply with the order of any such court and, as to all other jurisdictions, the covenants contained herein shall remain in full force and effect as originally written.
9. Partial Invalidity. In the event any court of competent jurisdiction holds any provision of this Agreement to be invalid or unenforceable, such invalid or unenforceable portion(s) shall be limited or excluded from this Agreement to the minimum extent required, and the remaining provisions shall not be affected or invalidated and shall remain in full force and effect.
10. Waiver. The rights and remedies of the parties to this Agreement are cumulative and without prejudice to any other rights or remedies under applicable law. Neither the failure nor any delay by any party in exercising any right, power or privilege under this Agreement will operate as a waiver of such right, power or privilege, and no single or partial exercise of any such right, power or privilege will preclude any other or further exercise of such right, power or privilege or the exercise of any other right, power or privilege. To the maximum extent permitted by applicable law, (a) no claim or right arising out of this Agreement can be discharged by one party, in whole or in part, by a waiver or renunciation of the claim or right unless in writing signed by the other party; (b) no waiver that may be given by a party will be applicable, except in the specific instance for which it is given; and (c) no notice or demand on one party will be deemed to be a waiver of any obligation of such party or of the right of the party giving such notice or demand to take further action without notice or demand as provided in this Agreement.
11. Entire Agreement. This Agreement, together with the Contribution and Merger Agreement, constitutes the entire agreement between the parties with respect to the subject matter hereof, and fully supersedes all prior and contemporaneous negotiations, promises, understandings, representations, writings, discussions and/or agreements between the parties, whether written or oral, pertaining to or concerning the subject matter of this Agreement. No oral statements or other prior written material not specifically incorporated into this Agreement shall be of any force or effect, and no changes in or additions to this Agreement shall be recognized, unless incorporated into this Agreement by written amendment, such amendment to become effective on the date stipulated in it. Any amendment to this Agreement must be signed by all parties to this Agreement.
12. Controlling Law and Venue. This Agreement shall be governed by and construed under the laws of the Commonwealth of Virginia. Venue of any litigation arising from this Agreement shall be in the United States District Court for the Eastern District of Virginia, or a state court of competent jurisdiction in Newport News, Virginia. The Restricted Party consents to personal jurisdiction of the United States District Court for the Eastern District of Virginia, or a state court of competent jurisdiction in Newport News, Virginia for any dispute relating to or arising out of this Agreement, and the Restricted Party agrees that the Restricted Party shall not challenge personal or subject matter jurisdiction in such courts.
13. Counterparts. This Agreement may be executed by the parties in multiple counterparts, whether or not all signatories appear on these counterparts (including via electronic signatures and exchange of PDF documents via email), each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
{Remainder of Page Intentionally Left Blank}
IN WITNESS WHEREOF, the parties have executed this Agreement, effective as of the Effective Date and subject to the consummation of the transactions contemplated by the Contribution and Merger Agreement.
THE RESTRICTED PARTY: Signature:
Printed Name:
Date:
THE COMPANIES: ALLIQUA HOLDINGS, INC
Signature:
Name:
Title:
Date:
ALLIQUA BIOMEDICAL, INC.
Signature:
Name:
Title:
Date:
Signature Page to Non-Competition and Non-Solicitation Agreement
| Not mentioned |
623_nda-12 | 623_nda-12_0 | Q: Receiving Party may independently develop information similar to Confidential Information.
Text: Exhibit 10.3
NON-COMPETITION AGREEMENT
WHEREAS, Alliqua BioMedical, Inc. (“Alliqua”), Alliqua Holdings, Inc., a Delaware corporation and a wholly-owned subsidiary of Alliqua (“Parent” and together with Alliqua, the “Alliqua Entities”), Chesapeake Merger Corp., a Delaware corporation and a wholly-owned subsidiary of Parent, and Soluble Systems, LLC, a Virginia limited liability company (the “Company”), have entered into that certain Contribution Agreement and Plan of Merger, dated as of October 5, 2016 (the “Contribution and Merger Agreement”);
WHEREAS, [●] (the “Restricted Party”) acknowledges that a material aspect of the Alliqua Entities’ decision to enter into the Contribution and Merger Agreement is the value and maintenance of the reputation and goodwill of the Company;
WHEREAS, as a material inducement to the Alliqua Entities to enter into the Contribution and Merger Agreement and consummate the transactions contemplated thereby, the Company has agreed that the Restricted Party shall execute this Agreement; and WHEREAS, the Contribution and Merger Agreement contemplates that the Restricted Party shall execute this Agreement;
NOW, THEREFORE, in consideration of the recitals and the covenants, representations, warranties, conditions and agreement hereinafter expressed, the Alliqua Entities and the Restricted Party agree as follows:
1. Effective Date. Subject to the Closing of the transactions contemplated by the Contribution and Merger Agreement, this Agreement shall be effective as of and on the Closing Date (the “Effective Date”).
2. Definitions. For all purposes under this Agreement, the following terms shall have the meaning set forth below. Any terms used but not otherwise defined herein shall have the respective meanings ascribed to them in the Contribution and Merger Agreement:
(a) “Confidential Information” includes any trade secrets or confidential or proprietary information of the Company, its Affiliates, and its and their respective predecessors and successors, including, but not limited to, the following: methods of operation, products, inventions, services, processes, equipment, know-how, technology, technical data, policies, strategies, designs, formulas, developmental or experimental work, improvements, discoveries, research, plans for research or future products and services, database schemas or tables, software, development tools or techniques, training procedures, training techniques, training manuals, business information, marketing and sales methods, plans and strategies, competitors, markets, market surveys, techniques, production processes, infrastructure, business plans, distribution and installation plans, processes and strategies, methodologies, budgets, financial data and information, customer and client information, prices and costs, fees, customer and client lists and profiles, employee, customer and client nonpublic personal information, supplier lists, business records, product construction, product specifications, audit processes, pricing strategies, business strategies, marketing and promotional practices, management methods and information, plans, reports, recommendations and conclusions, information regarding the skills and compensation of employees and contractors, and other business information disclosed to the Restricted Party by the Company, either directly or indirectly, in writing, orally, or by drawings or observation. “Confidential Information” does not include, and there shall be no obligation hereunder with respect to, information that: (i) is generally available to the public on the date of this Agreement; (ii) becomes generally available to the public other than as a result of a disclosure not otherwise permissible hereunder, (iii) was available, or becomes available, to the Restricted Party from a source other than the Alliqua Entities or its Representatives, provided that such source, to the Restricted Party’s actual knowledge after reasonable inquiry, was lawfully permitted to disclose such information; or (iv) has been independently acquired or developed by the Restricted Party without violating any of the Restricted Party’s obligations under this Agreement or otherwise owed to the Alliqua Entities or its Representatives.
(b) “Restricted Business” shall mean the business of providing a skin substitute for chronic wound care.
(c) “Restricted Period” shall mean a period commencing from the Effective Date until the two (2)-year anniversary of the Effective Date.
3. Acknowledgement.
(a) This Agreement is entered into in connection with the transactions contemplated by the Contribution and Merger Agreement. The parties acknowledge that it would be detrimental to the Alliqua Entities if the Restricted Party were to compete with the Alliqua Entities any time during the Restricted Period or to solicit customers, clients, employees or contractors of the Company or Alliqua Entities at any time during the Restricted Period.
(b) The Restricted Party recognizes that the covenants set forth herein are an essential part of the transactions contemplated by the Contribution and Merger Agreement and that but for the agreement of the Restricted Party to comply with such covenants, the Alliqua Entities would not enter into the Contribution and Merger Agreement. The Restricted Party acknowledges and agrees that the covenants set forth herein are necessary to protect the legitimate business interests of the Alliqua Entities acquired pursuant to the Contribution and Merger Agreement. In addition, the Restricted Party acknowledges that the consideration paid pursuant to the terms of the Contribution and Merger Agreement is paid in part as consideration for customer and client contacts, marketplace reputation and goodwill developed by the Restricted Party for the Company and the covenants set forth herein are necessary for the Alliqua Entities to receive the full benefit of the Contribution and Merger Agreement.
(c) The Restricted Party hereby acknowledges the broad territorial scope of the covenants contained in this Agreement, but acknowledges and agrees that the restrictions are reasonable and enforceable in view of, among other things, (i) the narrow range of activities prohibited, (ii) the Company’s products and services are marketed on a wide geographic scope, (iii) the Confidential Information of the Company to which the Restricted Party had, has or will have access, (iv) the fact that a business that competes with Alliqua Entities could greatly benefit if it were to obtain the Confidential Information of the Company, (v) the Alliqua Entities acquisition of the Company Intellectual Property and goodwill of the Company pursuant to the transactions contemplated by the Contribution and Merger Agreement, (vi) the fact that the Restricted Party would have an unfair competitive advantage if the Restricted Party were allowed to engage in the competitive activities prohibited by this Agreement in light of the Confidential Information and/or goodwill that the Restricted Party has acquired, and (vii) the provisions of this Agreement are reasonable and necessary to protect and preserve the Alliqua Entities’ interests in and right to use and operate the Company’s business from and after Closing.
4. Non-Disclosure. The Restricted Party agrees not to dispute, contest, or deny any ownership rights of the Alliqua Entities of the Confidential Information or the Company Intellectual Property. The Restricted Party agrees to preserve and protect the confidentiality of all Confidential Information. The Restricted Party shall not directly or indirectly, disclose to any unauthorized person or use for the Restricted Party’s own account any Confidential Information. The Restricted Party shall hold all Confidential Information in the strictest confidence, and take all commercially reasonable precautions to prevent its inadvertent disclosure to any unauthorized person. The Restricted Party shall not, directly or indirectly, other than on behalf of the Alliqua Entities, utilize, disclose or make available to any other person or entity, any of the Confidential Information. Notwithstanding anything herein to the contrary, the covenants in this Section 4 shall not apply to Confidential Information that the Restricted Party is required to disclose by applicable Law, after providing written notice to the Alliqua Entities before producing the information, which notice shall be given as soon as practicable, so that the Alliqua Entities, at their sole expense, may seek a protective order or other appropriate remedy.
5. Non-Competition and Non-Solicitation. In exchange for the consideration contemplated under the Contribution and Merger Agreement and the consummation of the other transactions contemplated by the Contribution and Merger Agreement:
(a) During the Restricted Period, the Restricted Party shall not, directly or indirectly, own, manage, engage in, operate, control, work for, consult with, render services for, do business with, maintain any interest in (proprietary, financial or otherwise) or participate in the ownership, management, operation or control of, any business, whether in corporate, proprietorship or partnership form or otherwise, engage in the Restricted Business, other than on behalf of the Alliqua Entities; provided, that the restrictions contained in this Section 5(a) shall not restrict the acquisition by the Restricted Party, directly or indirectly, of less than 5% of the outstanding capital stock of any publicly traded company engaged in a Restricted Business.
(b) During the Restricted Period, the Restricted Party shall not, directly or indirectly, solicit, induce, recruit or encourage anyone who is a consultant or employee of the Company or the Alliqua Entities to terminate his or her employment or consulting relationship with the Company or the Alliqua Entities, or without the consent of the Alliqua Entities, hire, retain or engage any such person for the Restricted Party or for another Person or entity. Notwithstanding anything herein to the contrary, nothing in this Section 5(b) shall prevent the Restricted Party or any of its Affiliates from hiring, soliciting, inducing, recruiting or encouraging (i) any employee or consultant whose employment or consultancy has been terminated by the Company or the Alliqua Entities; or (ii) twelve (12) months after the date of termination of employment, any employee or consultant whose employment has been terminated by the employee or the consultant.
(c) During the Restricted Period, the Restricted Party shall not, directly or indirectly: (i) solicit business from, interfere with, attempt to solicit business from, interfere with, or do business with any actual or prospective customer or client with whom the Company or the Alliqua Entities does or has done business (including direct purchasers of the Company’s TheraSkin® product), in any case for the purpose of discussing or securing business or contracts related to the Restricted Business, or (ii) attempt to influence, encourage, persuade or induce any such actual or prospective customer or client whom the Company or the Alliqua Entities does or has done business to reduce the extent of its business dealings with the Alliqua Entities (including direct purchasers of the Company’s TheraSkin® product).
(d) The Restricted Party shall not, and shall cause any Affiliates not to, disparage or initiate negative publicity about the Company, the Alliqua Entities, or any of their respective employees, agents, business, policies, products, or services.
(e) If the Restricted Party violates any of the restrictions contained in this Article 5, the Restricted Period shall be suspended and shall not run in favor of the Restricted Party from the time of commencement of any violation until the time when the Restricted Party ceases the violation.
6. Remedies. The Restricted Party acknowledges that the restrictions contained herein, in view of the nature of the Company’s business and the businesses of the Alliqua Entities, are reasonable and necessary to protect their legitimate business interests, business goodwill and reputation, and that any violation of these restrictions would result in irreparable injury and continuing damage to them, and that money damages would not be a sufficient remedy for any such breach or threatened breach. Therefore, the Restricted Party agrees that the Alliqua Entities shall be entitled to seek a temporary restraining order and injunctive relief restraining the Restricted Party from the commission of any breach or threatened breach of any covenants herein, without the necessity of establishing irreparable harm or the posting of a bond, and to recover from the Restricted Party damages incurred, as well as the attorneys’ fees, costs and expenses related to any breach or threatened breach of this Agreement and enforcement of this Agreement. Nothing contained in this Agreement shall be construed as prohibiting the Alliqua Entities from pursuing any other remedies available to them for any breach or threatened breach, including, without limitation, the recovery of money damages, attorneys’ fees, and costs. The existence of any claim or cause of action by the Restricted Party, whether predicated on this Agreement or otherwise, shall not constitute a defense to the enforcement of the restrictive covenants contained herein, or preclude injunctive relief.
7. Assignment; Binding Agreement. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors and permitted assigns. The Restricted Party may not assign this Agreement to a third party. The Alliqua Entities may assign their rights, together with their obligations hereunder, to any Affiliates and/or subsidiary or any successor thereto or any purchaser of substantially all of their assets.
8. Reformation. The Restricted Party agrees that in the event any of the covenants contained herein shall be held by any court to be effective in any particular area or jurisdiction only if said covenant is modified to limit its duration or scope, then the court shall have such authority to so reform the covenant and the parties hereto shall consider such covenant(s) and/or other provisions to be amended and modified with respect to that particular area or jurisdiction so as to comply with the order of any such court and, as to all other jurisdictions, the covenants contained herein shall remain in full force and effect as originally written.
9. Partial Invalidity. In the event any court of competent jurisdiction holds any provision of this Agreement to be invalid or unenforceable, such invalid or unenforceable portion(s) shall be limited or excluded from this Agreement to the minimum extent required, and the remaining provisions shall not be affected or invalidated and shall remain in full force and effect.
10. Waiver. The rights and remedies of the parties to this Agreement are cumulative and without prejudice to any other rights or remedies under applicable law. Neither the failure nor any delay by any party in exercising any right, power or privilege under this Agreement will operate as a waiver of such right, power or privilege, and no single or partial exercise of any such right, power or privilege will preclude any other or further exercise of such right, power or privilege or the exercise of any other right, power or privilege. To the maximum extent permitted by applicable law, (a) no claim or right arising out of this Agreement can be discharged by one party, in whole or in part, by a waiver or renunciation of the claim or right unless in writing signed by the other party; (b) no waiver that may be given by a party will be applicable, except in the specific instance for which it is given; and (c) no notice or demand on one party will be deemed to be a waiver of any obligation of such party or of the right of the party giving such notice or demand to take further action without notice or demand as provided in this Agreement.
11. Entire Agreement. This Agreement, together with the Contribution and Merger Agreement, constitutes the entire agreement between the parties with respect to the subject matter hereof, and fully supersedes all prior and contemporaneous negotiations, promises, understandings, representations, writings, discussions and/or agreements between the parties, whether written or oral, pertaining to or concerning the subject matter of this Agreement. No oral statements or other prior written material not specifically incorporated into this Agreement shall be of any force or effect, and no changes in or additions to this Agreement shall be recognized, unless incorporated into this Agreement by written amendment, such amendment to become effective on the date stipulated in it. Any amendment to this Agreement must be signed by all parties to this Agreement.
12. Controlling Law and Venue. This Agreement shall be governed by and construed under the laws of the Commonwealth of Virginia. Venue of any litigation arising from this Agreement shall be in the United States District Court for the Eastern District of Virginia, or a state court of competent jurisdiction in Newport News, Virginia. The Restricted Party consents to personal jurisdiction of the United States District Court for the Eastern District of Virginia, or a state court of competent jurisdiction in Newport News, Virginia for any dispute relating to or arising out of this Agreement, and the Restricted Party agrees that the Restricted Party shall not challenge personal or subject matter jurisdiction in such courts.
13. Counterparts. This Agreement may be executed by the parties in multiple counterparts, whether or not all signatories appear on these counterparts (including via electronic signatures and exchange of PDF documents via email), each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
{Remainder of Page Intentionally Left Blank}
IN WITNESS WHEREOF, the parties have executed this Agreement, effective as of the Effective Date and subject to the consummation of the transactions contemplated by the Contribution and Merger Agreement.
THE RESTRICTED PARTY: Signature:
Printed Name:
Date:
THE COMPANIES: ALLIQUA HOLDINGS, INC
Signature:
Name:
Title:
Date:
ALLIQUA BIOMEDICAL, INC.
Signature:
Name:
Title:
Date:
Signature Page to Non-Competition and Non-Solicitation Agreement
| Entailment |
623_nda-20 | 623_nda-20_0 | Q: Receiving Party may retain some Confidential Information even after the return or destruction of Confidential Information.
Text: Exhibit 10.3
NON-COMPETITION AGREEMENT
WHEREAS, Alliqua BioMedical, Inc. (“Alliqua”), Alliqua Holdings, Inc., a Delaware corporation and a wholly-owned subsidiary of Alliqua (“Parent” and together with Alliqua, the “Alliqua Entities”), Chesapeake Merger Corp., a Delaware corporation and a wholly-owned subsidiary of Parent, and Soluble Systems, LLC, a Virginia limited liability company (the “Company”), have entered into that certain Contribution Agreement and Plan of Merger, dated as of October 5, 2016 (the “Contribution and Merger Agreement”);
WHEREAS, [●] (the “Restricted Party”) acknowledges that a material aspect of the Alliqua Entities’ decision to enter into the Contribution and Merger Agreement is the value and maintenance of the reputation and goodwill of the Company;
WHEREAS, as a material inducement to the Alliqua Entities to enter into the Contribution and Merger Agreement and consummate the transactions contemplated thereby, the Company has agreed that the Restricted Party shall execute this Agreement; and WHEREAS, the Contribution and Merger Agreement contemplates that the Restricted Party shall execute this Agreement;
NOW, THEREFORE, in consideration of the recitals and the covenants, representations, warranties, conditions and agreement hereinafter expressed, the Alliqua Entities and the Restricted Party agree as follows:
1. Effective Date. Subject to the Closing of the transactions contemplated by the Contribution and Merger Agreement, this Agreement shall be effective as of and on the Closing Date (the “Effective Date”).
2. Definitions. For all purposes under this Agreement, the following terms shall have the meaning set forth below. Any terms used but not otherwise defined herein shall have the respective meanings ascribed to them in the Contribution and Merger Agreement:
(a) “Confidential Information” includes any trade secrets or confidential or proprietary information of the Company, its Affiliates, and its and their respective predecessors and successors, including, but not limited to, the following: methods of operation, products, inventions, services, processes, equipment, know-how, technology, technical data, policies, strategies, designs, formulas, developmental or experimental work, improvements, discoveries, research, plans for research or future products and services, database schemas or tables, software, development tools or techniques, training procedures, training techniques, training manuals, business information, marketing and sales methods, plans and strategies, competitors, markets, market surveys, techniques, production processes, infrastructure, business plans, distribution and installation plans, processes and strategies, methodologies, budgets, financial data and information, customer and client information, prices and costs, fees, customer and client lists and profiles, employee, customer and client nonpublic personal information, supplier lists, business records, product construction, product specifications, audit processes, pricing strategies, business strategies, marketing and promotional practices, management methods and information, plans, reports, recommendations and conclusions, information regarding the skills and compensation of employees and contractors, and other business information disclosed to the Restricted Party by the Company, either directly or indirectly, in writing, orally, or by drawings or observation. “Confidential Information” does not include, and there shall be no obligation hereunder with respect to, information that: (i) is generally available to the public on the date of this Agreement; (ii) becomes generally available to the public other than as a result of a disclosure not otherwise permissible hereunder, (iii) was available, or becomes available, to the Restricted Party from a source other than the Alliqua Entities or its Representatives, provided that such source, to the Restricted Party’s actual knowledge after reasonable inquiry, was lawfully permitted to disclose such information; or (iv) has been independently acquired or developed by the Restricted Party without violating any of the Restricted Party’s obligations under this Agreement or otherwise owed to the Alliqua Entities or its Representatives.
(b) “Restricted Business” shall mean the business of providing a skin substitute for chronic wound care.
(c) “Restricted Period” shall mean a period commencing from the Effective Date until the two (2)-year anniversary of the Effective Date.
3. Acknowledgement.
(a) This Agreement is entered into in connection with the transactions contemplated by the Contribution and Merger Agreement. The parties acknowledge that it would be detrimental to the Alliqua Entities if the Restricted Party were to compete with the Alliqua Entities any time during the Restricted Period or to solicit customers, clients, employees or contractors of the Company or Alliqua Entities at any time during the Restricted Period.
(b) The Restricted Party recognizes that the covenants set forth herein are an essential part of the transactions contemplated by the Contribution and Merger Agreement and that but for the agreement of the Restricted Party to comply with such covenants, the Alliqua Entities would not enter into the Contribution and Merger Agreement. The Restricted Party acknowledges and agrees that the covenants set forth herein are necessary to protect the legitimate business interests of the Alliqua Entities acquired pursuant to the Contribution and Merger Agreement. In addition, the Restricted Party acknowledges that the consideration paid pursuant to the terms of the Contribution and Merger Agreement is paid in part as consideration for customer and client contacts, marketplace reputation and goodwill developed by the Restricted Party for the Company and the covenants set forth herein are necessary for the Alliqua Entities to receive the full benefit of the Contribution and Merger Agreement.
(c) The Restricted Party hereby acknowledges the broad territorial scope of the covenants contained in this Agreement, but acknowledges and agrees that the restrictions are reasonable and enforceable in view of, among other things, (i) the narrow range of activities prohibited, (ii) the Company’s products and services are marketed on a wide geographic scope, (iii) the Confidential Information of the Company to which the Restricted Party had, has or will have access, (iv) the fact that a business that competes with Alliqua Entities could greatly benefit if it were to obtain the Confidential Information of the Company, (v) the Alliqua Entities acquisition of the Company Intellectual Property and goodwill of the Company pursuant to the transactions contemplated by the Contribution and Merger Agreement, (vi) the fact that the Restricted Party would have an unfair competitive advantage if the Restricted Party were allowed to engage in the competitive activities prohibited by this Agreement in light of the Confidential Information and/or goodwill that the Restricted Party has acquired, and (vii) the provisions of this Agreement are reasonable and necessary to protect and preserve the Alliqua Entities’ interests in and right to use and operate the Company’s business from and after Closing.
4. Non-Disclosure. The Restricted Party agrees not to dispute, contest, or deny any ownership rights of the Alliqua Entities of the Confidential Information or the Company Intellectual Property. The Restricted Party agrees to preserve and protect the confidentiality of all Confidential Information. The Restricted Party shall not directly or indirectly, disclose to any unauthorized person or use for the Restricted Party’s own account any Confidential Information. The Restricted Party shall hold all Confidential Information in the strictest confidence, and take all commercially reasonable precautions to prevent its inadvertent disclosure to any unauthorized person. The Restricted Party shall not, directly or indirectly, other than on behalf of the Alliqua Entities, utilize, disclose or make available to any other person or entity, any of the Confidential Information. Notwithstanding anything herein to the contrary, the covenants in this Section 4 shall not apply to Confidential Information that the Restricted Party is required to disclose by applicable Law, after providing written notice to the Alliqua Entities before producing the information, which notice shall be given as soon as practicable, so that the Alliqua Entities, at their sole expense, may seek a protective order or other appropriate remedy.
5. Non-Competition and Non-Solicitation. In exchange for the consideration contemplated under the Contribution and Merger Agreement and the consummation of the other transactions contemplated by the Contribution and Merger Agreement:
(a) During the Restricted Period, the Restricted Party shall not, directly or indirectly, own, manage, engage in, operate, control, work for, consult with, render services for, do business with, maintain any interest in (proprietary, financial or otherwise) or participate in the ownership, management, operation or control of, any business, whether in corporate, proprietorship or partnership form or otherwise, engage in the Restricted Business, other than on behalf of the Alliqua Entities; provided, that the restrictions contained in this Section 5(a) shall not restrict the acquisition by the Restricted Party, directly or indirectly, of less than 5% of the outstanding capital stock of any publicly traded company engaged in a Restricted Business.
(b) During the Restricted Period, the Restricted Party shall not, directly or indirectly, solicit, induce, recruit or encourage anyone who is a consultant or employee of the Company or the Alliqua Entities to terminate his or her employment or consulting relationship with the Company or the Alliqua Entities, or without the consent of the Alliqua Entities, hire, retain or engage any such person for the Restricted Party or for another Person or entity. Notwithstanding anything herein to the contrary, nothing in this Section 5(b) shall prevent the Restricted Party or any of its Affiliates from hiring, soliciting, inducing, recruiting or encouraging (i) any employee or consultant whose employment or consultancy has been terminated by the Company or the Alliqua Entities; or (ii) twelve (12) months after the date of termination of employment, any employee or consultant whose employment has been terminated by the employee or the consultant.
(c) During the Restricted Period, the Restricted Party shall not, directly or indirectly: (i) solicit business from, interfere with, attempt to solicit business from, interfere with, or do business with any actual or prospective customer or client with whom the Company or the Alliqua Entities does or has done business (including direct purchasers of the Company’s TheraSkin® product), in any case for the purpose of discussing or securing business or contracts related to the Restricted Business, or (ii) attempt to influence, encourage, persuade or induce any such actual or prospective customer or client whom the Company or the Alliqua Entities does or has done business to reduce the extent of its business dealings with the Alliqua Entities (including direct purchasers of the Company’s TheraSkin® product).
(d) The Restricted Party shall not, and shall cause any Affiliates not to, disparage or initiate negative publicity about the Company, the Alliqua Entities, or any of their respective employees, agents, business, policies, products, or services.
(e) If the Restricted Party violates any of the restrictions contained in this Article 5, the Restricted Period shall be suspended and shall not run in favor of the Restricted Party from the time of commencement of any violation until the time when the Restricted Party ceases the violation.
6. Remedies. The Restricted Party acknowledges that the restrictions contained herein, in view of the nature of the Company’s business and the businesses of the Alliqua Entities, are reasonable and necessary to protect their legitimate business interests, business goodwill and reputation, and that any violation of these restrictions would result in irreparable injury and continuing damage to them, and that money damages would not be a sufficient remedy for any such breach or threatened breach. Therefore, the Restricted Party agrees that the Alliqua Entities shall be entitled to seek a temporary restraining order and injunctive relief restraining the Restricted Party from the commission of any breach or threatened breach of any covenants herein, without the necessity of establishing irreparable harm or the posting of a bond, and to recover from the Restricted Party damages incurred, as well as the attorneys’ fees, costs and expenses related to any breach or threatened breach of this Agreement and enforcement of this Agreement. Nothing contained in this Agreement shall be construed as prohibiting the Alliqua Entities from pursuing any other remedies available to them for any breach or threatened breach, including, without limitation, the recovery of money damages, attorneys’ fees, and costs. The existence of any claim or cause of action by the Restricted Party, whether predicated on this Agreement or otherwise, shall not constitute a defense to the enforcement of the restrictive covenants contained herein, or preclude injunctive relief.
7. Assignment; Binding Agreement. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors and permitted assigns. The Restricted Party may not assign this Agreement to a third party. The Alliqua Entities may assign their rights, together with their obligations hereunder, to any Affiliates and/or subsidiary or any successor thereto or any purchaser of substantially all of their assets.
8. Reformation. The Restricted Party agrees that in the event any of the covenants contained herein shall be held by any court to be effective in any particular area or jurisdiction only if said covenant is modified to limit its duration or scope, then the court shall have such authority to so reform the covenant and the parties hereto shall consider such covenant(s) and/or other provisions to be amended and modified with respect to that particular area or jurisdiction so as to comply with the order of any such court and, as to all other jurisdictions, the covenants contained herein shall remain in full force and effect as originally written.
9. Partial Invalidity. In the event any court of competent jurisdiction holds any provision of this Agreement to be invalid or unenforceable, such invalid or unenforceable portion(s) shall be limited or excluded from this Agreement to the minimum extent required, and the remaining provisions shall not be affected or invalidated and shall remain in full force and effect.
10. Waiver. The rights and remedies of the parties to this Agreement are cumulative and without prejudice to any other rights or remedies under applicable law. Neither the failure nor any delay by any party in exercising any right, power or privilege under this Agreement will operate as a waiver of such right, power or privilege, and no single or partial exercise of any such right, power or privilege will preclude any other or further exercise of such right, power or privilege or the exercise of any other right, power or privilege. To the maximum extent permitted by applicable law, (a) no claim or right arising out of this Agreement can be discharged by one party, in whole or in part, by a waiver or renunciation of the claim or right unless in writing signed by the other party; (b) no waiver that may be given by a party will be applicable, except in the specific instance for which it is given; and (c) no notice or demand on one party will be deemed to be a waiver of any obligation of such party or of the right of the party giving such notice or demand to take further action without notice or demand as provided in this Agreement.
11. Entire Agreement. This Agreement, together with the Contribution and Merger Agreement, constitutes the entire agreement between the parties with respect to the subject matter hereof, and fully supersedes all prior and contemporaneous negotiations, promises, understandings, representations, writings, discussions and/or agreements between the parties, whether written or oral, pertaining to or concerning the subject matter of this Agreement. No oral statements or other prior written material not specifically incorporated into this Agreement shall be of any force or effect, and no changes in or additions to this Agreement shall be recognized, unless incorporated into this Agreement by written amendment, such amendment to become effective on the date stipulated in it. Any amendment to this Agreement must be signed by all parties to this Agreement.
12. Controlling Law and Venue. This Agreement shall be governed by and construed under the laws of the Commonwealth of Virginia. Venue of any litigation arising from this Agreement shall be in the United States District Court for the Eastern District of Virginia, or a state court of competent jurisdiction in Newport News, Virginia. The Restricted Party consents to personal jurisdiction of the United States District Court for the Eastern District of Virginia, or a state court of competent jurisdiction in Newport News, Virginia for any dispute relating to or arising out of this Agreement, and the Restricted Party agrees that the Restricted Party shall not challenge personal or subject matter jurisdiction in such courts.
13. Counterparts. This Agreement may be executed by the parties in multiple counterparts, whether or not all signatories appear on these counterparts (including via electronic signatures and exchange of PDF documents via email), each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
{Remainder of Page Intentionally Left Blank}
IN WITNESS WHEREOF, the parties have executed this Agreement, effective as of the Effective Date and subject to the consummation of the transactions contemplated by the Contribution and Merger Agreement.
THE RESTRICTED PARTY: Signature:
Printed Name:
Date:
THE COMPANIES: ALLIQUA HOLDINGS, INC
Signature:
Name:
Title:
Date:
ALLIQUA BIOMEDICAL, INC.
Signature:
Name:
Title:
Date:
Signature Page to Non-Competition and Non-Solicitation Agreement
| Not mentioned |
623_nda-3 | 623_nda-3_0 | Q: Confidential Information may include verbally conveyed information.
Text: Exhibit 10.3
NON-COMPETITION AGREEMENT
WHEREAS, Alliqua BioMedical, Inc. (“Alliqua”), Alliqua Holdings, Inc., a Delaware corporation and a wholly-owned subsidiary of Alliqua (“Parent” and together with Alliqua, the “Alliqua Entities”), Chesapeake Merger Corp., a Delaware corporation and a wholly-owned subsidiary of Parent, and Soluble Systems, LLC, a Virginia limited liability company (the “Company”), have entered into that certain Contribution Agreement and Plan of Merger, dated as of October 5, 2016 (the “Contribution and Merger Agreement”);
WHEREAS, [●] (the “Restricted Party”) acknowledges that a material aspect of the Alliqua Entities’ decision to enter into the Contribution and Merger Agreement is the value and maintenance of the reputation and goodwill of the Company;
WHEREAS, as a material inducement to the Alliqua Entities to enter into the Contribution and Merger Agreement and consummate the transactions contemplated thereby, the Company has agreed that the Restricted Party shall execute this Agreement; and WHEREAS, the Contribution and Merger Agreement contemplates that the Restricted Party shall execute this Agreement;
NOW, THEREFORE, in consideration of the recitals and the covenants, representations, warranties, conditions and agreement hereinafter expressed, the Alliqua Entities and the Restricted Party agree as follows:
1. Effective Date. Subject to the Closing of the transactions contemplated by the Contribution and Merger Agreement, this Agreement shall be effective as of and on the Closing Date (the “Effective Date”).
2. Definitions. For all purposes under this Agreement, the following terms shall have the meaning set forth below. Any terms used but not otherwise defined herein shall have the respective meanings ascribed to them in the Contribution and Merger Agreement:
(a) “Confidential Information” includes any trade secrets or confidential or proprietary information of the Company, its Affiliates, and its and their respective predecessors and successors, including, but not limited to, the following: methods of operation, products, inventions, services, processes, equipment, know-how, technology, technical data, policies, strategies, designs, formulas, developmental or experimental work, improvements, discoveries, research, plans for research or future products and services, database schemas or tables, software, development tools or techniques, training procedures, training techniques, training manuals, business information, marketing and sales methods, plans and strategies, competitors, markets, market surveys, techniques, production processes, infrastructure, business plans, distribution and installation plans, processes and strategies, methodologies, budgets, financial data and information, customer and client information, prices and costs, fees, customer and client lists and profiles, employee, customer and client nonpublic personal information, supplier lists, business records, product construction, product specifications, audit processes, pricing strategies, business strategies, marketing and promotional practices, management methods and information, plans, reports, recommendations and conclusions, information regarding the skills and compensation of employees and contractors, and other business information disclosed to the Restricted Party by the Company, either directly or indirectly, in writing, orally, or by drawings or observation. “Confidential Information” does not include, and there shall be no obligation hereunder with respect to, information that: (i) is generally available to the public on the date of this Agreement; (ii) becomes generally available to the public other than as a result of a disclosure not otherwise permissible hereunder, (iii) was available, or becomes available, to the Restricted Party from a source other than the Alliqua Entities or its Representatives, provided that such source, to the Restricted Party’s actual knowledge after reasonable inquiry, was lawfully permitted to disclose such information; or (iv) has been independently acquired or developed by the Restricted Party without violating any of the Restricted Party’s obligations under this Agreement or otherwise owed to the Alliqua Entities or its Representatives.
(b) “Restricted Business” shall mean the business of providing a skin substitute for chronic wound care.
(c) “Restricted Period” shall mean a period commencing from the Effective Date until the two (2)-year anniversary of the Effective Date.
3. Acknowledgement.
(a) This Agreement is entered into in connection with the transactions contemplated by the Contribution and Merger Agreement. The parties acknowledge that it would be detrimental to the Alliqua Entities if the Restricted Party were to compete with the Alliqua Entities any time during the Restricted Period or to solicit customers, clients, employees or contractors of the Company or Alliqua Entities at any time during the Restricted Period.
(b) The Restricted Party recognizes that the covenants set forth herein are an essential part of the transactions contemplated by the Contribution and Merger Agreement and that but for the agreement of the Restricted Party to comply with such covenants, the Alliqua Entities would not enter into the Contribution and Merger Agreement. The Restricted Party acknowledges and agrees that the covenants set forth herein are necessary to protect the legitimate business interests of the Alliqua Entities acquired pursuant to the Contribution and Merger Agreement. In addition, the Restricted Party acknowledges that the consideration paid pursuant to the terms of the Contribution and Merger Agreement is paid in part as consideration for customer and client contacts, marketplace reputation and goodwill developed by the Restricted Party for the Company and the covenants set forth herein are necessary for the Alliqua Entities to receive the full benefit of the Contribution and Merger Agreement.
(c) The Restricted Party hereby acknowledges the broad territorial scope of the covenants contained in this Agreement, but acknowledges and agrees that the restrictions are reasonable and enforceable in view of, among other things, (i) the narrow range of activities prohibited, (ii) the Company’s products and services are marketed on a wide geographic scope, (iii) the Confidential Information of the Company to which the Restricted Party had, has or will have access, (iv) the fact that a business that competes with Alliqua Entities could greatly benefit if it were to obtain the Confidential Information of the Company, (v) the Alliqua Entities acquisition of the Company Intellectual Property and goodwill of the Company pursuant to the transactions contemplated by the Contribution and Merger Agreement, (vi) the fact that the Restricted Party would have an unfair competitive advantage if the Restricted Party were allowed to engage in the competitive activities prohibited by this Agreement in light of the Confidential Information and/or goodwill that the Restricted Party has acquired, and (vii) the provisions of this Agreement are reasonable and necessary to protect and preserve the Alliqua Entities’ interests in and right to use and operate the Company’s business from and after Closing.
4. Non-Disclosure. The Restricted Party agrees not to dispute, contest, or deny any ownership rights of the Alliqua Entities of the Confidential Information or the Company Intellectual Property. The Restricted Party agrees to preserve and protect the confidentiality of all Confidential Information. The Restricted Party shall not directly or indirectly, disclose to any unauthorized person or use for the Restricted Party’s own account any Confidential Information. The Restricted Party shall hold all Confidential Information in the strictest confidence, and take all commercially reasonable precautions to prevent its inadvertent disclosure to any unauthorized person. The Restricted Party shall not, directly or indirectly, other than on behalf of the Alliqua Entities, utilize, disclose or make available to any other person or entity, any of the Confidential Information. Notwithstanding anything herein to the contrary, the covenants in this Section 4 shall not apply to Confidential Information that the Restricted Party is required to disclose by applicable Law, after providing written notice to the Alliqua Entities before producing the information, which notice shall be given as soon as practicable, so that the Alliqua Entities, at their sole expense, may seek a protective order or other appropriate remedy.
5. Non-Competition and Non-Solicitation. In exchange for the consideration contemplated under the Contribution and Merger Agreement and the consummation of the other transactions contemplated by the Contribution and Merger Agreement:
(a) During the Restricted Period, the Restricted Party shall not, directly or indirectly, own, manage, engage in, operate, control, work for, consult with, render services for, do business with, maintain any interest in (proprietary, financial or otherwise) or participate in the ownership, management, operation or control of, any business, whether in corporate, proprietorship or partnership form or otherwise, engage in the Restricted Business, other than on behalf of the Alliqua Entities; provided, that the restrictions contained in this Section 5(a) shall not restrict the acquisition by the Restricted Party, directly or indirectly, of less than 5% of the outstanding capital stock of any publicly traded company engaged in a Restricted Business.
(b) During the Restricted Period, the Restricted Party shall not, directly or indirectly, solicit, induce, recruit or encourage anyone who is a consultant or employee of the Company or the Alliqua Entities to terminate his or her employment or consulting relationship with the Company or the Alliqua Entities, or without the consent of the Alliqua Entities, hire, retain or engage any such person for the Restricted Party or for another Person or entity. Notwithstanding anything herein to the contrary, nothing in this Section 5(b) shall prevent the Restricted Party or any of its Affiliates from hiring, soliciting, inducing, recruiting or encouraging (i) any employee or consultant whose employment or consultancy has been terminated by the Company or the Alliqua Entities; or (ii) twelve (12) months after the date of termination of employment, any employee or consultant whose employment has been terminated by the employee or the consultant.
(c) During the Restricted Period, the Restricted Party shall not, directly or indirectly: (i) solicit business from, interfere with, attempt to solicit business from, interfere with, or do business with any actual or prospective customer or client with whom the Company or the Alliqua Entities does or has done business (including direct purchasers of the Company’s TheraSkin® product), in any case for the purpose of discussing or securing business or contracts related to the Restricted Business, or (ii) attempt to influence, encourage, persuade or induce any such actual or prospective customer or client whom the Company or the Alliqua Entities does or has done business to reduce the extent of its business dealings with the Alliqua Entities (including direct purchasers of the Company’s TheraSkin® product).
(d) The Restricted Party shall not, and shall cause any Affiliates not to, disparage or initiate negative publicity about the Company, the Alliqua Entities, or any of their respective employees, agents, business, policies, products, or services.
(e) If the Restricted Party violates any of the restrictions contained in this Article 5, the Restricted Period shall be suspended and shall not run in favor of the Restricted Party from the time of commencement of any violation until the time when the Restricted Party ceases the violation.
6. Remedies. The Restricted Party acknowledges that the restrictions contained herein, in view of the nature of the Company’s business and the businesses of the Alliqua Entities, are reasonable and necessary to protect their legitimate business interests, business goodwill and reputation, and that any violation of these restrictions would result in irreparable injury and continuing damage to them, and that money damages would not be a sufficient remedy for any such breach or threatened breach. Therefore, the Restricted Party agrees that the Alliqua Entities shall be entitled to seek a temporary restraining order and injunctive relief restraining the Restricted Party from the commission of any breach or threatened breach of any covenants herein, without the necessity of establishing irreparable harm or the posting of a bond, and to recover from the Restricted Party damages incurred, as well as the attorneys’ fees, costs and expenses related to any breach or threatened breach of this Agreement and enforcement of this Agreement. Nothing contained in this Agreement shall be construed as prohibiting the Alliqua Entities from pursuing any other remedies available to them for any breach or threatened breach, including, without limitation, the recovery of money damages, attorneys’ fees, and costs. The existence of any claim or cause of action by the Restricted Party, whether predicated on this Agreement or otherwise, shall not constitute a defense to the enforcement of the restrictive covenants contained herein, or preclude injunctive relief.
7. Assignment; Binding Agreement. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors and permitted assigns. The Restricted Party may not assign this Agreement to a third party. The Alliqua Entities may assign their rights, together with their obligations hereunder, to any Affiliates and/or subsidiary or any successor thereto or any purchaser of substantially all of their assets.
8. Reformation. The Restricted Party agrees that in the event any of the covenants contained herein shall be held by any court to be effective in any particular area or jurisdiction only if said covenant is modified to limit its duration or scope, then the court shall have such authority to so reform the covenant and the parties hereto shall consider such covenant(s) and/or other provisions to be amended and modified with respect to that particular area or jurisdiction so as to comply with the order of any such court and, as to all other jurisdictions, the covenants contained herein shall remain in full force and effect as originally written.
9. Partial Invalidity. In the event any court of competent jurisdiction holds any provision of this Agreement to be invalid or unenforceable, such invalid or unenforceable portion(s) shall be limited or excluded from this Agreement to the minimum extent required, and the remaining provisions shall not be affected or invalidated and shall remain in full force and effect.
10. Waiver. The rights and remedies of the parties to this Agreement are cumulative and without prejudice to any other rights or remedies under applicable law. Neither the failure nor any delay by any party in exercising any right, power or privilege under this Agreement will operate as a waiver of such right, power or privilege, and no single or partial exercise of any such right, power or privilege will preclude any other or further exercise of such right, power or privilege or the exercise of any other right, power or privilege. To the maximum extent permitted by applicable law, (a) no claim or right arising out of this Agreement can be discharged by one party, in whole or in part, by a waiver or renunciation of the claim or right unless in writing signed by the other party; (b) no waiver that may be given by a party will be applicable, except in the specific instance for which it is given; and (c) no notice or demand on one party will be deemed to be a waiver of any obligation of such party or of the right of the party giving such notice or demand to take further action without notice or demand as provided in this Agreement.
11. Entire Agreement. This Agreement, together with the Contribution and Merger Agreement, constitutes the entire agreement between the parties with respect to the subject matter hereof, and fully supersedes all prior and contemporaneous negotiations, promises, understandings, representations, writings, discussions and/or agreements between the parties, whether written or oral, pertaining to or concerning the subject matter of this Agreement. No oral statements or other prior written material not specifically incorporated into this Agreement shall be of any force or effect, and no changes in or additions to this Agreement shall be recognized, unless incorporated into this Agreement by written amendment, such amendment to become effective on the date stipulated in it. Any amendment to this Agreement must be signed by all parties to this Agreement.
12. Controlling Law and Venue. This Agreement shall be governed by and construed under the laws of the Commonwealth of Virginia. Venue of any litigation arising from this Agreement shall be in the United States District Court for the Eastern District of Virginia, or a state court of competent jurisdiction in Newport News, Virginia. The Restricted Party consents to personal jurisdiction of the United States District Court for the Eastern District of Virginia, or a state court of competent jurisdiction in Newport News, Virginia for any dispute relating to or arising out of this Agreement, and the Restricted Party agrees that the Restricted Party shall not challenge personal or subject matter jurisdiction in such courts.
13. Counterparts. This Agreement may be executed by the parties in multiple counterparts, whether or not all signatories appear on these counterparts (including via electronic signatures and exchange of PDF documents via email), each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
{Remainder of Page Intentionally Left Blank}
IN WITNESS WHEREOF, the parties have executed this Agreement, effective as of the Effective Date and subject to the consummation of the transactions contemplated by the Contribution and Merger Agreement.
THE RESTRICTED PARTY: Signature:
Printed Name:
Date:
THE COMPANIES: ALLIQUA HOLDINGS, INC
Signature:
Name:
Title:
Date:
ALLIQUA BIOMEDICAL, INC.
Signature:
Name:
Title:
Date:
Signature Page to Non-Competition and Non-Solicitation Agreement
| Entailment |
623_nda-18 | 623_nda-18_0 | Q: Receiving Party shall not solicit some of Disclosing Party's representatives.
Text: Exhibit 10.3
NON-COMPETITION AGREEMENT
WHEREAS, Alliqua BioMedical, Inc. (“Alliqua”), Alliqua Holdings, Inc., a Delaware corporation and a wholly-owned subsidiary of Alliqua (“Parent” and together with Alliqua, the “Alliqua Entities”), Chesapeake Merger Corp., a Delaware corporation and a wholly-owned subsidiary of Parent, and Soluble Systems, LLC, a Virginia limited liability company (the “Company”), have entered into that certain Contribution Agreement and Plan of Merger, dated as of October 5, 2016 (the “Contribution and Merger Agreement”);
WHEREAS, [●] (the “Restricted Party”) acknowledges that a material aspect of the Alliqua Entities’ decision to enter into the Contribution and Merger Agreement is the value and maintenance of the reputation and goodwill of the Company;
WHEREAS, as a material inducement to the Alliqua Entities to enter into the Contribution and Merger Agreement and consummate the transactions contemplated thereby, the Company has agreed that the Restricted Party shall execute this Agreement; and WHEREAS, the Contribution and Merger Agreement contemplates that the Restricted Party shall execute this Agreement;
NOW, THEREFORE, in consideration of the recitals and the covenants, representations, warranties, conditions and agreement hereinafter expressed, the Alliqua Entities and the Restricted Party agree as follows:
1. Effective Date. Subject to the Closing of the transactions contemplated by the Contribution and Merger Agreement, this Agreement shall be effective as of and on the Closing Date (the “Effective Date”).
2. Definitions. For all purposes under this Agreement, the following terms shall have the meaning set forth below. Any terms used but not otherwise defined herein shall have the respective meanings ascribed to them in the Contribution and Merger Agreement:
(a) “Confidential Information” includes any trade secrets or confidential or proprietary information of the Company, its Affiliates, and its and their respective predecessors and successors, including, but not limited to, the following: methods of operation, products, inventions, services, processes, equipment, know-how, technology, technical data, policies, strategies, designs, formulas, developmental or experimental work, improvements, discoveries, research, plans for research or future products and services, database schemas or tables, software, development tools or techniques, training procedures, training techniques, training manuals, business information, marketing and sales methods, plans and strategies, competitors, markets, market surveys, techniques, production processes, infrastructure, business plans, distribution and installation plans, processes and strategies, methodologies, budgets, financial data and information, customer and client information, prices and costs, fees, customer and client lists and profiles, employee, customer and client nonpublic personal information, supplier lists, business records, product construction, product specifications, audit processes, pricing strategies, business strategies, marketing and promotional practices, management methods and information, plans, reports, recommendations and conclusions, information regarding the skills and compensation of employees and contractors, and other business information disclosed to the Restricted Party by the Company, either directly or indirectly, in writing, orally, or by drawings or observation. “Confidential Information” does not include, and there shall be no obligation hereunder with respect to, information that: (i) is generally available to the public on the date of this Agreement; (ii) becomes generally available to the public other than as a result of a disclosure not otherwise permissible hereunder, (iii) was available, or becomes available, to the Restricted Party from a source other than the Alliqua Entities or its Representatives, provided that such source, to the Restricted Party’s actual knowledge after reasonable inquiry, was lawfully permitted to disclose such information; or (iv) has been independently acquired or developed by the Restricted Party without violating any of the Restricted Party’s obligations under this Agreement or otherwise owed to the Alliqua Entities or its Representatives.
(b) “Restricted Business” shall mean the business of providing a skin substitute for chronic wound care.
(c) “Restricted Period” shall mean a period commencing from the Effective Date until the two (2)-year anniversary of the Effective Date.
3. Acknowledgement.
(a) This Agreement is entered into in connection with the transactions contemplated by the Contribution and Merger Agreement. The parties acknowledge that it would be detrimental to the Alliqua Entities if the Restricted Party were to compete with the Alliqua Entities any time during the Restricted Period or to solicit customers, clients, employees or contractors of the Company or Alliqua Entities at any time during the Restricted Period.
(b) The Restricted Party recognizes that the covenants set forth herein are an essential part of the transactions contemplated by the Contribution and Merger Agreement and that but for the agreement of the Restricted Party to comply with such covenants, the Alliqua Entities would not enter into the Contribution and Merger Agreement. The Restricted Party acknowledges and agrees that the covenants set forth herein are necessary to protect the legitimate business interests of the Alliqua Entities acquired pursuant to the Contribution and Merger Agreement. In addition, the Restricted Party acknowledges that the consideration paid pursuant to the terms of the Contribution and Merger Agreement is paid in part as consideration for customer and client contacts, marketplace reputation and goodwill developed by the Restricted Party for the Company and the covenants set forth herein are necessary for the Alliqua Entities to receive the full benefit of the Contribution and Merger Agreement.
(c) The Restricted Party hereby acknowledges the broad territorial scope of the covenants contained in this Agreement, but acknowledges and agrees that the restrictions are reasonable and enforceable in view of, among other things, (i) the narrow range of activities prohibited, (ii) the Company’s products and services are marketed on a wide geographic scope, (iii) the Confidential Information of the Company to which the Restricted Party had, has or will have access, (iv) the fact that a business that competes with Alliqua Entities could greatly benefit if it were to obtain the Confidential Information of the Company, (v) the Alliqua Entities acquisition of the Company Intellectual Property and goodwill of the Company pursuant to the transactions contemplated by the Contribution and Merger Agreement, (vi) the fact that the Restricted Party would have an unfair competitive advantage if the Restricted Party were allowed to engage in the competitive activities prohibited by this Agreement in light of the Confidential Information and/or goodwill that the Restricted Party has acquired, and (vii) the provisions of this Agreement are reasonable and necessary to protect and preserve the Alliqua Entities’ interests in and right to use and operate the Company’s business from and after Closing.
4. Non-Disclosure. The Restricted Party agrees not to dispute, contest, or deny any ownership rights of the Alliqua Entities of the Confidential Information or the Company Intellectual Property. The Restricted Party agrees to preserve and protect the confidentiality of all Confidential Information. The Restricted Party shall not directly or indirectly, disclose to any unauthorized person or use for the Restricted Party’s own account any Confidential Information. The Restricted Party shall hold all Confidential Information in the strictest confidence, and take all commercially reasonable precautions to prevent its inadvertent disclosure to any unauthorized person. The Restricted Party shall not, directly or indirectly, other than on behalf of the Alliqua Entities, utilize, disclose or make available to any other person or entity, any of the Confidential Information. Notwithstanding anything herein to the contrary, the covenants in this Section 4 shall not apply to Confidential Information that the Restricted Party is required to disclose by applicable Law, after providing written notice to the Alliqua Entities before producing the information, which notice shall be given as soon as practicable, so that the Alliqua Entities, at their sole expense, may seek a protective order or other appropriate remedy.
5. Non-Competition and Non-Solicitation. In exchange for the consideration contemplated under the Contribution and Merger Agreement and the consummation of the other transactions contemplated by the Contribution and Merger Agreement:
(a) During the Restricted Period, the Restricted Party shall not, directly or indirectly, own, manage, engage in, operate, control, work for, consult with, render services for, do business with, maintain any interest in (proprietary, financial or otherwise) or participate in the ownership, management, operation or control of, any business, whether in corporate, proprietorship or partnership form or otherwise, engage in the Restricted Business, other than on behalf of the Alliqua Entities; provided, that the restrictions contained in this Section 5(a) shall not restrict the acquisition by the Restricted Party, directly or indirectly, of less than 5% of the outstanding capital stock of any publicly traded company engaged in a Restricted Business.
(b) During the Restricted Period, the Restricted Party shall not, directly or indirectly, solicit, induce, recruit or encourage anyone who is a consultant or employee of the Company or the Alliqua Entities to terminate his or her employment or consulting relationship with the Company or the Alliqua Entities, or without the consent of the Alliqua Entities, hire, retain or engage any such person for the Restricted Party or for another Person or entity. Notwithstanding anything herein to the contrary, nothing in this Section 5(b) shall prevent the Restricted Party or any of its Affiliates from hiring, soliciting, inducing, recruiting or encouraging (i) any employee or consultant whose employment or consultancy has been terminated by the Company or the Alliqua Entities; or (ii) twelve (12) months after the date of termination of employment, any employee or consultant whose employment has been terminated by the employee or the consultant.
(c) During the Restricted Period, the Restricted Party shall not, directly or indirectly: (i) solicit business from, interfere with, attempt to solicit business from, interfere with, or do business with any actual or prospective customer or client with whom the Company or the Alliqua Entities does or has done business (including direct purchasers of the Company’s TheraSkin® product), in any case for the purpose of discussing or securing business or contracts related to the Restricted Business, or (ii) attempt to influence, encourage, persuade or induce any such actual or prospective customer or client whom the Company or the Alliqua Entities does or has done business to reduce the extent of its business dealings with the Alliqua Entities (including direct purchasers of the Company’s TheraSkin® product).
(d) The Restricted Party shall not, and shall cause any Affiliates not to, disparage or initiate negative publicity about the Company, the Alliqua Entities, or any of their respective employees, agents, business, policies, products, or services.
(e) If the Restricted Party violates any of the restrictions contained in this Article 5, the Restricted Period shall be suspended and shall not run in favor of the Restricted Party from the time of commencement of any violation until the time when the Restricted Party ceases the violation.
6. Remedies. The Restricted Party acknowledges that the restrictions contained herein, in view of the nature of the Company’s business and the businesses of the Alliqua Entities, are reasonable and necessary to protect their legitimate business interests, business goodwill and reputation, and that any violation of these restrictions would result in irreparable injury and continuing damage to them, and that money damages would not be a sufficient remedy for any such breach or threatened breach. Therefore, the Restricted Party agrees that the Alliqua Entities shall be entitled to seek a temporary restraining order and injunctive relief restraining the Restricted Party from the commission of any breach or threatened breach of any covenants herein, without the necessity of establishing irreparable harm or the posting of a bond, and to recover from the Restricted Party damages incurred, as well as the attorneys’ fees, costs and expenses related to any breach or threatened breach of this Agreement and enforcement of this Agreement. Nothing contained in this Agreement shall be construed as prohibiting the Alliqua Entities from pursuing any other remedies available to them for any breach or threatened breach, including, without limitation, the recovery of money damages, attorneys’ fees, and costs. The existence of any claim or cause of action by the Restricted Party, whether predicated on this Agreement or otherwise, shall not constitute a defense to the enforcement of the restrictive covenants contained herein, or preclude injunctive relief.
7. Assignment; Binding Agreement. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors and permitted assigns. The Restricted Party may not assign this Agreement to a third party. The Alliqua Entities may assign their rights, together with their obligations hereunder, to any Affiliates and/or subsidiary or any successor thereto or any purchaser of substantially all of their assets.
8. Reformation. The Restricted Party agrees that in the event any of the covenants contained herein shall be held by any court to be effective in any particular area or jurisdiction only if said covenant is modified to limit its duration or scope, then the court shall have such authority to so reform the covenant and the parties hereto shall consider such covenant(s) and/or other provisions to be amended and modified with respect to that particular area or jurisdiction so as to comply with the order of any such court and, as to all other jurisdictions, the covenants contained herein shall remain in full force and effect as originally written.
9. Partial Invalidity. In the event any court of competent jurisdiction holds any provision of this Agreement to be invalid or unenforceable, such invalid or unenforceable portion(s) shall be limited or excluded from this Agreement to the minimum extent required, and the remaining provisions shall not be affected or invalidated and shall remain in full force and effect.
10. Waiver. The rights and remedies of the parties to this Agreement are cumulative and without prejudice to any other rights or remedies under applicable law. Neither the failure nor any delay by any party in exercising any right, power or privilege under this Agreement will operate as a waiver of such right, power or privilege, and no single or partial exercise of any such right, power or privilege will preclude any other or further exercise of such right, power or privilege or the exercise of any other right, power or privilege. To the maximum extent permitted by applicable law, (a) no claim or right arising out of this Agreement can be discharged by one party, in whole or in part, by a waiver or renunciation of the claim or right unless in writing signed by the other party; (b) no waiver that may be given by a party will be applicable, except in the specific instance for which it is given; and (c) no notice or demand on one party will be deemed to be a waiver of any obligation of such party or of the right of the party giving such notice or demand to take further action without notice or demand as provided in this Agreement.
11. Entire Agreement. This Agreement, together with the Contribution and Merger Agreement, constitutes the entire agreement between the parties with respect to the subject matter hereof, and fully supersedes all prior and contemporaneous negotiations, promises, understandings, representations, writings, discussions and/or agreements between the parties, whether written or oral, pertaining to or concerning the subject matter of this Agreement. No oral statements or other prior written material not specifically incorporated into this Agreement shall be of any force or effect, and no changes in or additions to this Agreement shall be recognized, unless incorporated into this Agreement by written amendment, such amendment to become effective on the date stipulated in it. Any amendment to this Agreement must be signed by all parties to this Agreement.
12. Controlling Law and Venue. This Agreement shall be governed by and construed under the laws of the Commonwealth of Virginia. Venue of any litigation arising from this Agreement shall be in the United States District Court for the Eastern District of Virginia, or a state court of competent jurisdiction in Newport News, Virginia. The Restricted Party consents to personal jurisdiction of the United States District Court for the Eastern District of Virginia, or a state court of competent jurisdiction in Newport News, Virginia for any dispute relating to or arising out of this Agreement, and the Restricted Party agrees that the Restricted Party shall not challenge personal or subject matter jurisdiction in such courts.
13. Counterparts. This Agreement may be executed by the parties in multiple counterparts, whether or not all signatories appear on these counterparts (including via electronic signatures and exchange of PDF documents via email), each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
{Remainder of Page Intentionally Left Blank}
IN WITNESS WHEREOF, the parties have executed this Agreement, effective as of the Effective Date and subject to the consummation of the transactions contemplated by the Contribution and Merger Agreement.
THE RESTRICTED PARTY: Signature:
Printed Name:
Date:
THE COMPANIES: ALLIQUA HOLDINGS, INC
Signature:
Name:
Title:
Date:
ALLIQUA BIOMEDICAL, INC.
Signature:
Name:
Title:
Date:
Signature Page to Non-Competition and Non-Solicitation Agreement
| Entailment |
623_nda-7 | 623_nda-7_0 | Q: Receiving Party may share some Confidential Information with some third-parties (including consultants, agents and professional advisors).
Text: Exhibit 10.3
NON-COMPETITION AGREEMENT
WHEREAS, Alliqua BioMedical, Inc. (“Alliqua”), Alliqua Holdings, Inc., a Delaware corporation and a wholly-owned subsidiary of Alliqua (“Parent” and together with Alliqua, the “Alliqua Entities”), Chesapeake Merger Corp., a Delaware corporation and a wholly-owned subsidiary of Parent, and Soluble Systems, LLC, a Virginia limited liability company (the “Company”), have entered into that certain Contribution Agreement and Plan of Merger, dated as of October 5, 2016 (the “Contribution and Merger Agreement”);
WHEREAS, [●] (the “Restricted Party”) acknowledges that a material aspect of the Alliqua Entities’ decision to enter into the Contribution and Merger Agreement is the value and maintenance of the reputation and goodwill of the Company;
WHEREAS, as a material inducement to the Alliqua Entities to enter into the Contribution and Merger Agreement and consummate the transactions contemplated thereby, the Company has agreed that the Restricted Party shall execute this Agreement; and WHEREAS, the Contribution and Merger Agreement contemplates that the Restricted Party shall execute this Agreement;
NOW, THEREFORE, in consideration of the recitals and the covenants, representations, warranties, conditions and agreement hereinafter expressed, the Alliqua Entities and the Restricted Party agree as follows:
1. Effective Date. Subject to the Closing of the transactions contemplated by the Contribution and Merger Agreement, this Agreement shall be effective as of and on the Closing Date (the “Effective Date”).
2. Definitions. For all purposes under this Agreement, the following terms shall have the meaning set forth below. Any terms used but not otherwise defined herein shall have the respective meanings ascribed to them in the Contribution and Merger Agreement:
(a) “Confidential Information” includes any trade secrets or confidential or proprietary information of the Company, its Affiliates, and its and their respective predecessors and successors, including, but not limited to, the following: methods of operation, products, inventions, services, processes, equipment, know-how, technology, technical data, policies, strategies, designs, formulas, developmental or experimental work, improvements, discoveries, research, plans for research or future products and services, database schemas or tables, software, development tools or techniques, training procedures, training techniques, training manuals, business information, marketing and sales methods, plans and strategies, competitors, markets, market surveys, techniques, production processes, infrastructure, business plans, distribution and installation plans, processes and strategies, methodologies, budgets, financial data and information, customer and client information, prices and costs, fees, customer and client lists and profiles, employee, customer and client nonpublic personal information, supplier lists, business records, product construction, product specifications, audit processes, pricing strategies, business strategies, marketing and promotional practices, management methods and information, plans, reports, recommendations and conclusions, information regarding the skills and compensation of employees and contractors, and other business information disclosed to the Restricted Party by the Company, either directly or indirectly, in writing, orally, or by drawings or observation. “Confidential Information” does not include, and there shall be no obligation hereunder with respect to, information that: (i) is generally available to the public on the date of this Agreement; (ii) becomes generally available to the public other than as a result of a disclosure not otherwise permissible hereunder, (iii) was available, or becomes available, to the Restricted Party from a source other than the Alliqua Entities or its Representatives, provided that such source, to the Restricted Party’s actual knowledge after reasonable inquiry, was lawfully permitted to disclose such information; or (iv) has been independently acquired or developed by the Restricted Party without violating any of the Restricted Party’s obligations under this Agreement or otherwise owed to the Alliqua Entities or its Representatives.
(b) “Restricted Business” shall mean the business of providing a skin substitute for chronic wound care.
(c) “Restricted Period” shall mean a period commencing from the Effective Date until the two (2)-year anniversary of the Effective Date.
3. Acknowledgement.
(a) This Agreement is entered into in connection with the transactions contemplated by the Contribution and Merger Agreement. The parties acknowledge that it would be detrimental to the Alliqua Entities if the Restricted Party were to compete with the Alliqua Entities any time during the Restricted Period or to solicit customers, clients, employees or contractors of the Company or Alliqua Entities at any time during the Restricted Period.
(b) The Restricted Party recognizes that the covenants set forth herein are an essential part of the transactions contemplated by the Contribution and Merger Agreement and that but for the agreement of the Restricted Party to comply with such covenants, the Alliqua Entities would not enter into the Contribution and Merger Agreement. The Restricted Party acknowledges and agrees that the covenants set forth herein are necessary to protect the legitimate business interests of the Alliqua Entities acquired pursuant to the Contribution and Merger Agreement. In addition, the Restricted Party acknowledges that the consideration paid pursuant to the terms of the Contribution and Merger Agreement is paid in part as consideration for customer and client contacts, marketplace reputation and goodwill developed by the Restricted Party for the Company and the covenants set forth herein are necessary for the Alliqua Entities to receive the full benefit of the Contribution and Merger Agreement.
(c) The Restricted Party hereby acknowledges the broad territorial scope of the covenants contained in this Agreement, but acknowledges and agrees that the restrictions are reasonable and enforceable in view of, among other things, (i) the narrow range of activities prohibited, (ii) the Company’s products and services are marketed on a wide geographic scope, (iii) the Confidential Information of the Company to which the Restricted Party had, has or will have access, (iv) the fact that a business that competes with Alliqua Entities could greatly benefit if it were to obtain the Confidential Information of the Company, (v) the Alliqua Entities acquisition of the Company Intellectual Property and goodwill of the Company pursuant to the transactions contemplated by the Contribution and Merger Agreement, (vi) the fact that the Restricted Party would have an unfair competitive advantage if the Restricted Party were allowed to engage in the competitive activities prohibited by this Agreement in light of the Confidential Information and/or goodwill that the Restricted Party has acquired, and (vii) the provisions of this Agreement are reasonable and necessary to protect and preserve the Alliqua Entities’ interests in and right to use and operate the Company’s business from and after Closing.
4. Non-Disclosure. The Restricted Party agrees not to dispute, contest, or deny any ownership rights of the Alliqua Entities of the Confidential Information or the Company Intellectual Property. The Restricted Party agrees to preserve and protect the confidentiality of all Confidential Information. The Restricted Party shall not directly or indirectly, disclose to any unauthorized person or use for the Restricted Party’s own account any Confidential Information. The Restricted Party shall hold all Confidential Information in the strictest confidence, and take all commercially reasonable precautions to prevent its inadvertent disclosure to any unauthorized person. The Restricted Party shall not, directly or indirectly, other than on behalf of the Alliqua Entities, utilize, disclose or make available to any other person or entity, any of the Confidential Information. Notwithstanding anything herein to the contrary, the covenants in this Section 4 shall not apply to Confidential Information that the Restricted Party is required to disclose by applicable Law, after providing written notice to the Alliqua Entities before producing the information, which notice shall be given as soon as practicable, so that the Alliqua Entities, at their sole expense, may seek a protective order or other appropriate remedy.
5. Non-Competition and Non-Solicitation. In exchange for the consideration contemplated under the Contribution and Merger Agreement and the consummation of the other transactions contemplated by the Contribution and Merger Agreement:
(a) During the Restricted Period, the Restricted Party shall not, directly or indirectly, own, manage, engage in, operate, control, work for, consult with, render services for, do business with, maintain any interest in (proprietary, financial or otherwise) or participate in the ownership, management, operation or control of, any business, whether in corporate, proprietorship or partnership form or otherwise, engage in the Restricted Business, other than on behalf of the Alliqua Entities; provided, that the restrictions contained in this Section 5(a) shall not restrict the acquisition by the Restricted Party, directly or indirectly, of less than 5% of the outstanding capital stock of any publicly traded company engaged in a Restricted Business.
(b) During the Restricted Period, the Restricted Party shall not, directly or indirectly, solicit, induce, recruit or encourage anyone who is a consultant or employee of the Company or the Alliqua Entities to terminate his or her employment or consulting relationship with the Company or the Alliqua Entities, or without the consent of the Alliqua Entities, hire, retain or engage any such person for the Restricted Party or for another Person or entity. Notwithstanding anything herein to the contrary, nothing in this Section 5(b) shall prevent the Restricted Party or any of its Affiliates from hiring, soliciting, inducing, recruiting or encouraging (i) any employee or consultant whose employment or consultancy has been terminated by the Company or the Alliqua Entities; or (ii) twelve (12) months after the date of termination of employment, any employee or consultant whose employment has been terminated by the employee or the consultant.
(c) During the Restricted Period, the Restricted Party shall not, directly or indirectly: (i) solicit business from, interfere with, attempt to solicit business from, interfere with, or do business with any actual or prospective customer or client with whom the Company or the Alliqua Entities does or has done business (including direct purchasers of the Company’s TheraSkin® product), in any case for the purpose of discussing or securing business or contracts related to the Restricted Business, or (ii) attempt to influence, encourage, persuade or induce any such actual or prospective customer or client whom the Company or the Alliqua Entities does or has done business to reduce the extent of its business dealings with the Alliqua Entities (including direct purchasers of the Company’s TheraSkin® product).
(d) The Restricted Party shall not, and shall cause any Affiliates not to, disparage or initiate negative publicity about the Company, the Alliqua Entities, or any of their respective employees, agents, business, policies, products, or services.
(e) If the Restricted Party violates any of the restrictions contained in this Article 5, the Restricted Period shall be suspended and shall not run in favor of the Restricted Party from the time of commencement of any violation until the time when the Restricted Party ceases the violation.
6. Remedies. The Restricted Party acknowledges that the restrictions contained herein, in view of the nature of the Company’s business and the businesses of the Alliqua Entities, are reasonable and necessary to protect their legitimate business interests, business goodwill and reputation, and that any violation of these restrictions would result in irreparable injury and continuing damage to them, and that money damages would not be a sufficient remedy for any such breach or threatened breach. Therefore, the Restricted Party agrees that the Alliqua Entities shall be entitled to seek a temporary restraining order and injunctive relief restraining the Restricted Party from the commission of any breach or threatened breach of any covenants herein, without the necessity of establishing irreparable harm or the posting of a bond, and to recover from the Restricted Party damages incurred, as well as the attorneys’ fees, costs and expenses related to any breach or threatened breach of this Agreement and enforcement of this Agreement. Nothing contained in this Agreement shall be construed as prohibiting the Alliqua Entities from pursuing any other remedies available to them for any breach or threatened breach, including, without limitation, the recovery of money damages, attorneys’ fees, and costs. The existence of any claim or cause of action by the Restricted Party, whether predicated on this Agreement or otherwise, shall not constitute a defense to the enforcement of the restrictive covenants contained herein, or preclude injunctive relief.
7. Assignment; Binding Agreement. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors and permitted assigns. The Restricted Party may not assign this Agreement to a third party. The Alliqua Entities may assign their rights, together with their obligations hereunder, to any Affiliates and/or subsidiary or any successor thereto or any purchaser of substantially all of their assets.
8. Reformation. The Restricted Party agrees that in the event any of the covenants contained herein shall be held by any court to be effective in any particular area or jurisdiction only if said covenant is modified to limit its duration or scope, then the court shall have such authority to so reform the covenant and the parties hereto shall consider such covenant(s) and/or other provisions to be amended and modified with respect to that particular area or jurisdiction so as to comply with the order of any such court and, as to all other jurisdictions, the covenants contained herein shall remain in full force and effect as originally written.
9. Partial Invalidity. In the event any court of competent jurisdiction holds any provision of this Agreement to be invalid or unenforceable, such invalid or unenforceable portion(s) shall be limited or excluded from this Agreement to the minimum extent required, and the remaining provisions shall not be affected or invalidated and shall remain in full force and effect.
10. Waiver. The rights and remedies of the parties to this Agreement are cumulative and without prejudice to any other rights or remedies under applicable law. Neither the failure nor any delay by any party in exercising any right, power or privilege under this Agreement will operate as a waiver of such right, power or privilege, and no single or partial exercise of any such right, power or privilege will preclude any other or further exercise of such right, power or privilege or the exercise of any other right, power or privilege. To the maximum extent permitted by applicable law, (a) no claim or right arising out of this Agreement can be discharged by one party, in whole or in part, by a waiver or renunciation of the claim or right unless in writing signed by the other party; (b) no waiver that may be given by a party will be applicable, except in the specific instance for which it is given; and (c) no notice or demand on one party will be deemed to be a waiver of any obligation of such party or of the right of the party giving such notice or demand to take further action without notice or demand as provided in this Agreement.
11. Entire Agreement. This Agreement, together with the Contribution and Merger Agreement, constitutes the entire agreement between the parties with respect to the subject matter hereof, and fully supersedes all prior and contemporaneous negotiations, promises, understandings, representations, writings, discussions and/or agreements between the parties, whether written or oral, pertaining to or concerning the subject matter of this Agreement. No oral statements or other prior written material not specifically incorporated into this Agreement shall be of any force or effect, and no changes in or additions to this Agreement shall be recognized, unless incorporated into this Agreement by written amendment, such amendment to become effective on the date stipulated in it. Any amendment to this Agreement must be signed by all parties to this Agreement.
12. Controlling Law and Venue. This Agreement shall be governed by and construed under the laws of the Commonwealth of Virginia. Venue of any litigation arising from this Agreement shall be in the United States District Court for the Eastern District of Virginia, or a state court of competent jurisdiction in Newport News, Virginia. The Restricted Party consents to personal jurisdiction of the United States District Court for the Eastern District of Virginia, or a state court of competent jurisdiction in Newport News, Virginia for any dispute relating to or arising out of this Agreement, and the Restricted Party agrees that the Restricted Party shall not challenge personal or subject matter jurisdiction in such courts.
13. Counterparts. This Agreement may be executed by the parties in multiple counterparts, whether or not all signatories appear on these counterparts (including via electronic signatures and exchange of PDF documents via email), each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
{Remainder of Page Intentionally Left Blank}
IN WITNESS WHEREOF, the parties have executed this Agreement, effective as of the Effective Date and subject to the consummation of the transactions contemplated by the Contribution and Merger Agreement.
THE RESTRICTED PARTY: Signature:
Printed Name:
Date:
THE COMPANIES: ALLIQUA HOLDINGS, INC
Signature:
Name:
Title:
Date:
ALLIQUA BIOMEDICAL, INC.
Signature:
Name:
Title:
Date:
Signature Page to Non-Competition and Non-Solicitation Agreement
| Contradiction |
623_nda-17 | 623_nda-17_0 | Q: Receiving Party may create a copy of some Confidential Information in some circumstances.
Text: Exhibit 10.3
NON-COMPETITION AGREEMENT
WHEREAS, Alliqua BioMedical, Inc. (“Alliqua”), Alliqua Holdings, Inc., a Delaware corporation and a wholly-owned subsidiary of Alliqua (“Parent” and together with Alliqua, the “Alliqua Entities”), Chesapeake Merger Corp., a Delaware corporation and a wholly-owned subsidiary of Parent, and Soluble Systems, LLC, a Virginia limited liability company (the “Company”), have entered into that certain Contribution Agreement and Plan of Merger, dated as of October 5, 2016 (the “Contribution and Merger Agreement”);
WHEREAS, [●] (the “Restricted Party”) acknowledges that a material aspect of the Alliqua Entities’ decision to enter into the Contribution and Merger Agreement is the value and maintenance of the reputation and goodwill of the Company;
WHEREAS, as a material inducement to the Alliqua Entities to enter into the Contribution and Merger Agreement and consummate the transactions contemplated thereby, the Company has agreed that the Restricted Party shall execute this Agreement; and WHEREAS, the Contribution and Merger Agreement contemplates that the Restricted Party shall execute this Agreement;
NOW, THEREFORE, in consideration of the recitals and the covenants, representations, warranties, conditions and agreement hereinafter expressed, the Alliqua Entities and the Restricted Party agree as follows:
1. Effective Date. Subject to the Closing of the transactions contemplated by the Contribution and Merger Agreement, this Agreement shall be effective as of and on the Closing Date (the “Effective Date”).
2. Definitions. For all purposes under this Agreement, the following terms shall have the meaning set forth below. Any terms used but not otherwise defined herein shall have the respective meanings ascribed to them in the Contribution and Merger Agreement:
(a) “Confidential Information” includes any trade secrets or confidential or proprietary information of the Company, its Affiliates, and its and their respective predecessors and successors, including, but not limited to, the following: methods of operation, products, inventions, services, processes, equipment, know-how, technology, technical data, policies, strategies, designs, formulas, developmental or experimental work, improvements, discoveries, research, plans for research or future products and services, database schemas or tables, software, development tools or techniques, training procedures, training techniques, training manuals, business information, marketing and sales methods, plans and strategies, competitors, markets, market surveys, techniques, production processes, infrastructure, business plans, distribution and installation plans, processes and strategies, methodologies, budgets, financial data and information, customer and client information, prices and costs, fees, customer and client lists and profiles, employee, customer and client nonpublic personal information, supplier lists, business records, product construction, product specifications, audit processes, pricing strategies, business strategies, marketing and promotional practices, management methods and information, plans, reports, recommendations and conclusions, information regarding the skills and compensation of employees and contractors, and other business information disclosed to the Restricted Party by the Company, either directly or indirectly, in writing, orally, or by drawings or observation. “Confidential Information” does not include, and there shall be no obligation hereunder with respect to, information that: (i) is generally available to the public on the date of this Agreement; (ii) becomes generally available to the public other than as a result of a disclosure not otherwise permissible hereunder, (iii) was available, or becomes available, to the Restricted Party from a source other than the Alliqua Entities or its Representatives, provided that such source, to the Restricted Party’s actual knowledge after reasonable inquiry, was lawfully permitted to disclose such information; or (iv) has been independently acquired or developed by the Restricted Party without violating any of the Restricted Party’s obligations under this Agreement or otherwise owed to the Alliqua Entities or its Representatives.
(b) “Restricted Business” shall mean the business of providing a skin substitute for chronic wound care.
(c) “Restricted Period” shall mean a period commencing from the Effective Date until the two (2)-year anniversary of the Effective Date.
3. Acknowledgement.
(a) This Agreement is entered into in connection with the transactions contemplated by the Contribution and Merger Agreement. The parties acknowledge that it would be detrimental to the Alliqua Entities if the Restricted Party were to compete with the Alliqua Entities any time during the Restricted Period or to solicit customers, clients, employees or contractors of the Company or Alliqua Entities at any time during the Restricted Period.
(b) The Restricted Party recognizes that the covenants set forth herein are an essential part of the transactions contemplated by the Contribution and Merger Agreement and that but for the agreement of the Restricted Party to comply with such covenants, the Alliqua Entities would not enter into the Contribution and Merger Agreement. The Restricted Party acknowledges and agrees that the covenants set forth herein are necessary to protect the legitimate business interests of the Alliqua Entities acquired pursuant to the Contribution and Merger Agreement. In addition, the Restricted Party acknowledges that the consideration paid pursuant to the terms of the Contribution and Merger Agreement is paid in part as consideration for customer and client contacts, marketplace reputation and goodwill developed by the Restricted Party for the Company and the covenants set forth herein are necessary for the Alliqua Entities to receive the full benefit of the Contribution and Merger Agreement.
(c) The Restricted Party hereby acknowledges the broad territorial scope of the covenants contained in this Agreement, but acknowledges and agrees that the restrictions are reasonable and enforceable in view of, among other things, (i) the narrow range of activities prohibited, (ii) the Company’s products and services are marketed on a wide geographic scope, (iii) the Confidential Information of the Company to which the Restricted Party had, has or will have access, (iv) the fact that a business that competes with Alliqua Entities could greatly benefit if it were to obtain the Confidential Information of the Company, (v) the Alliqua Entities acquisition of the Company Intellectual Property and goodwill of the Company pursuant to the transactions contemplated by the Contribution and Merger Agreement, (vi) the fact that the Restricted Party would have an unfair competitive advantage if the Restricted Party were allowed to engage in the competitive activities prohibited by this Agreement in light of the Confidential Information and/or goodwill that the Restricted Party has acquired, and (vii) the provisions of this Agreement are reasonable and necessary to protect and preserve the Alliqua Entities’ interests in and right to use and operate the Company’s business from and after Closing.
4. Non-Disclosure. The Restricted Party agrees not to dispute, contest, or deny any ownership rights of the Alliqua Entities of the Confidential Information or the Company Intellectual Property. The Restricted Party agrees to preserve and protect the confidentiality of all Confidential Information. The Restricted Party shall not directly or indirectly, disclose to any unauthorized person or use for the Restricted Party’s own account any Confidential Information. The Restricted Party shall hold all Confidential Information in the strictest confidence, and take all commercially reasonable precautions to prevent its inadvertent disclosure to any unauthorized person. The Restricted Party shall not, directly or indirectly, other than on behalf of the Alliqua Entities, utilize, disclose or make available to any other person or entity, any of the Confidential Information. Notwithstanding anything herein to the contrary, the covenants in this Section 4 shall not apply to Confidential Information that the Restricted Party is required to disclose by applicable Law, after providing written notice to the Alliqua Entities before producing the information, which notice shall be given as soon as practicable, so that the Alliqua Entities, at their sole expense, may seek a protective order or other appropriate remedy.
5. Non-Competition and Non-Solicitation. In exchange for the consideration contemplated under the Contribution and Merger Agreement and the consummation of the other transactions contemplated by the Contribution and Merger Agreement:
(a) During the Restricted Period, the Restricted Party shall not, directly or indirectly, own, manage, engage in, operate, control, work for, consult with, render services for, do business with, maintain any interest in (proprietary, financial or otherwise) or participate in the ownership, management, operation or control of, any business, whether in corporate, proprietorship or partnership form or otherwise, engage in the Restricted Business, other than on behalf of the Alliqua Entities; provided, that the restrictions contained in this Section 5(a) shall not restrict the acquisition by the Restricted Party, directly or indirectly, of less than 5% of the outstanding capital stock of any publicly traded company engaged in a Restricted Business.
(b) During the Restricted Period, the Restricted Party shall not, directly or indirectly, solicit, induce, recruit or encourage anyone who is a consultant or employee of the Company or the Alliqua Entities to terminate his or her employment or consulting relationship with the Company or the Alliqua Entities, or without the consent of the Alliqua Entities, hire, retain or engage any such person for the Restricted Party or for another Person or entity. Notwithstanding anything herein to the contrary, nothing in this Section 5(b) shall prevent the Restricted Party or any of its Affiliates from hiring, soliciting, inducing, recruiting or encouraging (i) any employee or consultant whose employment or consultancy has been terminated by the Company or the Alliqua Entities; or (ii) twelve (12) months after the date of termination of employment, any employee or consultant whose employment has been terminated by the employee or the consultant.
(c) During the Restricted Period, the Restricted Party shall not, directly or indirectly: (i) solicit business from, interfere with, attempt to solicit business from, interfere with, or do business with any actual or prospective customer or client with whom the Company or the Alliqua Entities does or has done business (including direct purchasers of the Company’s TheraSkin® product), in any case for the purpose of discussing or securing business or contracts related to the Restricted Business, or (ii) attempt to influence, encourage, persuade or induce any such actual or prospective customer or client whom the Company or the Alliqua Entities does or has done business to reduce the extent of its business dealings with the Alliqua Entities (including direct purchasers of the Company’s TheraSkin® product).
(d) The Restricted Party shall not, and shall cause any Affiliates not to, disparage or initiate negative publicity about the Company, the Alliqua Entities, or any of their respective employees, agents, business, policies, products, or services.
(e) If the Restricted Party violates any of the restrictions contained in this Article 5, the Restricted Period shall be suspended and shall not run in favor of the Restricted Party from the time of commencement of any violation until the time when the Restricted Party ceases the violation.
6. Remedies. The Restricted Party acknowledges that the restrictions contained herein, in view of the nature of the Company’s business and the businesses of the Alliqua Entities, are reasonable and necessary to protect their legitimate business interests, business goodwill and reputation, and that any violation of these restrictions would result in irreparable injury and continuing damage to them, and that money damages would not be a sufficient remedy for any such breach or threatened breach. Therefore, the Restricted Party agrees that the Alliqua Entities shall be entitled to seek a temporary restraining order and injunctive relief restraining the Restricted Party from the commission of any breach or threatened breach of any covenants herein, without the necessity of establishing irreparable harm or the posting of a bond, and to recover from the Restricted Party damages incurred, as well as the attorneys’ fees, costs and expenses related to any breach or threatened breach of this Agreement and enforcement of this Agreement. Nothing contained in this Agreement shall be construed as prohibiting the Alliqua Entities from pursuing any other remedies available to them for any breach or threatened breach, including, without limitation, the recovery of money damages, attorneys’ fees, and costs. The existence of any claim or cause of action by the Restricted Party, whether predicated on this Agreement or otherwise, shall not constitute a defense to the enforcement of the restrictive covenants contained herein, or preclude injunctive relief.
7. Assignment; Binding Agreement. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors and permitted assigns. The Restricted Party may not assign this Agreement to a third party. The Alliqua Entities may assign their rights, together with their obligations hereunder, to any Affiliates and/or subsidiary or any successor thereto or any purchaser of substantially all of their assets.
8. Reformation. The Restricted Party agrees that in the event any of the covenants contained herein shall be held by any court to be effective in any particular area or jurisdiction only if said covenant is modified to limit its duration or scope, then the court shall have such authority to so reform the covenant and the parties hereto shall consider such covenant(s) and/or other provisions to be amended and modified with respect to that particular area or jurisdiction so as to comply with the order of any such court and, as to all other jurisdictions, the covenants contained herein shall remain in full force and effect as originally written.
9. Partial Invalidity. In the event any court of competent jurisdiction holds any provision of this Agreement to be invalid or unenforceable, such invalid or unenforceable portion(s) shall be limited or excluded from this Agreement to the minimum extent required, and the remaining provisions shall not be affected or invalidated and shall remain in full force and effect.
10. Waiver. The rights and remedies of the parties to this Agreement are cumulative and without prejudice to any other rights or remedies under applicable law. Neither the failure nor any delay by any party in exercising any right, power or privilege under this Agreement will operate as a waiver of such right, power or privilege, and no single or partial exercise of any such right, power or privilege will preclude any other or further exercise of such right, power or privilege or the exercise of any other right, power or privilege. To the maximum extent permitted by applicable law, (a) no claim or right arising out of this Agreement can be discharged by one party, in whole or in part, by a waiver or renunciation of the claim or right unless in writing signed by the other party; (b) no waiver that may be given by a party will be applicable, except in the specific instance for which it is given; and (c) no notice or demand on one party will be deemed to be a waiver of any obligation of such party or of the right of the party giving such notice or demand to take further action without notice or demand as provided in this Agreement.
11. Entire Agreement. This Agreement, together with the Contribution and Merger Agreement, constitutes the entire agreement between the parties with respect to the subject matter hereof, and fully supersedes all prior and contemporaneous negotiations, promises, understandings, representations, writings, discussions and/or agreements between the parties, whether written or oral, pertaining to or concerning the subject matter of this Agreement. No oral statements or other prior written material not specifically incorporated into this Agreement shall be of any force or effect, and no changes in or additions to this Agreement shall be recognized, unless incorporated into this Agreement by written amendment, such amendment to become effective on the date stipulated in it. Any amendment to this Agreement must be signed by all parties to this Agreement.
12. Controlling Law and Venue. This Agreement shall be governed by and construed under the laws of the Commonwealth of Virginia. Venue of any litigation arising from this Agreement shall be in the United States District Court for the Eastern District of Virginia, or a state court of competent jurisdiction in Newport News, Virginia. The Restricted Party consents to personal jurisdiction of the United States District Court for the Eastern District of Virginia, or a state court of competent jurisdiction in Newport News, Virginia for any dispute relating to or arising out of this Agreement, and the Restricted Party agrees that the Restricted Party shall not challenge personal or subject matter jurisdiction in such courts.
13. Counterparts. This Agreement may be executed by the parties in multiple counterparts, whether or not all signatories appear on these counterparts (including via electronic signatures and exchange of PDF documents via email), each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
{Remainder of Page Intentionally Left Blank}
IN WITNESS WHEREOF, the parties have executed this Agreement, effective as of the Effective Date and subject to the consummation of the transactions contemplated by the Contribution and Merger Agreement.
THE RESTRICTED PARTY: Signature:
Printed Name:
Date:
THE COMPANIES: ALLIQUA HOLDINGS, INC
Signature:
Name:
Title:
Date:
ALLIQUA BIOMEDICAL, INC.
Signature:
Name:
Title:
Date:
Signature Page to Non-Competition and Non-Solicitation Agreement
| Not mentioned |
623_nda-8 | 623_nda-8_0 | Q: Receiving Party shall notify Disclosing Party in case Receiving Party is required by law, regulation or judicial process to disclose any Confidential Information.
Text: Exhibit 10.3
NON-COMPETITION AGREEMENT
WHEREAS, Alliqua BioMedical, Inc. (“Alliqua”), Alliqua Holdings, Inc., a Delaware corporation and a wholly-owned subsidiary of Alliqua (“Parent” and together with Alliqua, the “Alliqua Entities”), Chesapeake Merger Corp., a Delaware corporation and a wholly-owned subsidiary of Parent, and Soluble Systems, LLC, a Virginia limited liability company (the “Company”), have entered into that certain Contribution Agreement and Plan of Merger, dated as of October 5, 2016 (the “Contribution and Merger Agreement”);
WHEREAS, [●] (the “Restricted Party”) acknowledges that a material aspect of the Alliqua Entities’ decision to enter into the Contribution and Merger Agreement is the value and maintenance of the reputation and goodwill of the Company;
WHEREAS, as a material inducement to the Alliqua Entities to enter into the Contribution and Merger Agreement and consummate the transactions contemplated thereby, the Company has agreed that the Restricted Party shall execute this Agreement; and WHEREAS, the Contribution and Merger Agreement contemplates that the Restricted Party shall execute this Agreement;
NOW, THEREFORE, in consideration of the recitals and the covenants, representations, warranties, conditions and agreement hereinafter expressed, the Alliqua Entities and the Restricted Party agree as follows:
1. Effective Date. Subject to the Closing of the transactions contemplated by the Contribution and Merger Agreement, this Agreement shall be effective as of and on the Closing Date (the “Effective Date”).
2. Definitions. For all purposes under this Agreement, the following terms shall have the meaning set forth below. Any terms used but not otherwise defined herein shall have the respective meanings ascribed to them in the Contribution and Merger Agreement:
(a) “Confidential Information” includes any trade secrets or confidential or proprietary information of the Company, its Affiliates, and its and their respective predecessors and successors, including, but not limited to, the following: methods of operation, products, inventions, services, processes, equipment, know-how, technology, technical data, policies, strategies, designs, formulas, developmental or experimental work, improvements, discoveries, research, plans for research or future products and services, database schemas or tables, software, development tools or techniques, training procedures, training techniques, training manuals, business information, marketing and sales methods, plans and strategies, competitors, markets, market surveys, techniques, production processes, infrastructure, business plans, distribution and installation plans, processes and strategies, methodologies, budgets, financial data and information, customer and client information, prices and costs, fees, customer and client lists and profiles, employee, customer and client nonpublic personal information, supplier lists, business records, product construction, product specifications, audit processes, pricing strategies, business strategies, marketing and promotional practices, management methods and information, plans, reports, recommendations and conclusions, information regarding the skills and compensation of employees and contractors, and other business information disclosed to the Restricted Party by the Company, either directly or indirectly, in writing, orally, or by drawings or observation. “Confidential Information” does not include, and there shall be no obligation hereunder with respect to, information that: (i) is generally available to the public on the date of this Agreement; (ii) becomes generally available to the public other than as a result of a disclosure not otherwise permissible hereunder, (iii) was available, or becomes available, to the Restricted Party from a source other than the Alliqua Entities or its Representatives, provided that such source, to the Restricted Party’s actual knowledge after reasonable inquiry, was lawfully permitted to disclose such information; or (iv) has been independently acquired or developed by the Restricted Party without violating any of the Restricted Party’s obligations under this Agreement or otherwise owed to the Alliqua Entities or its Representatives.
(b) “Restricted Business” shall mean the business of providing a skin substitute for chronic wound care.
(c) “Restricted Period” shall mean a period commencing from the Effective Date until the two (2)-year anniversary of the Effective Date.
3. Acknowledgement.
(a) This Agreement is entered into in connection with the transactions contemplated by the Contribution and Merger Agreement. The parties acknowledge that it would be detrimental to the Alliqua Entities if the Restricted Party were to compete with the Alliqua Entities any time during the Restricted Period or to solicit customers, clients, employees or contractors of the Company or Alliqua Entities at any time during the Restricted Period.
(b) The Restricted Party recognizes that the covenants set forth herein are an essential part of the transactions contemplated by the Contribution and Merger Agreement and that but for the agreement of the Restricted Party to comply with such covenants, the Alliqua Entities would not enter into the Contribution and Merger Agreement. The Restricted Party acknowledges and agrees that the covenants set forth herein are necessary to protect the legitimate business interests of the Alliqua Entities acquired pursuant to the Contribution and Merger Agreement. In addition, the Restricted Party acknowledges that the consideration paid pursuant to the terms of the Contribution and Merger Agreement is paid in part as consideration for customer and client contacts, marketplace reputation and goodwill developed by the Restricted Party for the Company and the covenants set forth herein are necessary for the Alliqua Entities to receive the full benefit of the Contribution and Merger Agreement.
(c) The Restricted Party hereby acknowledges the broad territorial scope of the covenants contained in this Agreement, but acknowledges and agrees that the restrictions are reasonable and enforceable in view of, among other things, (i) the narrow range of activities prohibited, (ii) the Company’s products and services are marketed on a wide geographic scope, (iii) the Confidential Information of the Company to which the Restricted Party had, has or will have access, (iv) the fact that a business that competes with Alliqua Entities could greatly benefit if it were to obtain the Confidential Information of the Company, (v) the Alliqua Entities acquisition of the Company Intellectual Property and goodwill of the Company pursuant to the transactions contemplated by the Contribution and Merger Agreement, (vi) the fact that the Restricted Party would have an unfair competitive advantage if the Restricted Party were allowed to engage in the competitive activities prohibited by this Agreement in light of the Confidential Information and/or goodwill that the Restricted Party has acquired, and (vii) the provisions of this Agreement are reasonable and necessary to protect and preserve the Alliqua Entities’ interests in and right to use and operate the Company’s business from and after Closing.
4. Non-Disclosure. The Restricted Party agrees not to dispute, contest, or deny any ownership rights of the Alliqua Entities of the Confidential Information or the Company Intellectual Property. The Restricted Party agrees to preserve and protect the confidentiality of all Confidential Information. The Restricted Party shall not directly or indirectly, disclose to any unauthorized person or use for the Restricted Party’s own account any Confidential Information. The Restricted Party shall hold all Confidential Information in the strictest confidence, and take all commercially reasonable precautions to prevent its inadvertent disclosure to any unauthorized person. The Restricted Party shall not, directly or indirectly, other than on behalf of the Alliqua Entities, utilize, disclose or make available to any other person or entity, any of the Confidential Information. Notwithstanding anything herein to the contrary, the covenants in this Section 4 shall not apply to Confidential Information that the Restricted Party is required to disclose by applicable Law, after providing written notice to the Alliqua Entities before producing the information, which notice shall be given as soon as practicable, so that the Alliqua Entities, at their sole expense, may seek a protective order or other appropriate remedy.
5. Non-Competition and Non-Solicitation. In exchange for the consideration contemplated under the Contribution and Merger Agreement and the consummation of the other transactions contemplated by the Contribution and Merger Agreement:
(a) During the Restricted Period, the Restricted Party shall not, directly or indirectly, own, manage, engage in, operate, control, work for, consult with, render services for, do business with, maintain any interest in (proprietary, financial or otherwise) or participate in the ownership, management, operation or control of, any business, whether in corporate, proprietorship or partnership form or otherwise, engage in the Restricted Business, other than on behalf of the Alliqua Entities; provided, that the restrictions contained in this Section 5(a) shall not restrict the acquisition by the Restricted Party, directly or indirectly, of less than 5% of the outstanding capital stock of any publicly traded company engaged in a Restricted Business.
(b) During the Restricted Period, the Restricted Party shall not, directly or indirectly, solicit, induce, recruit or encourage anyone who is a consultant or employee of the Company or the Alliqua Entities to terminate his or her employment or consulting relationship with the Company or the Alliqua Entities, or without the consent of the Alliqua Entities, hire, retain or engage any such person for the Restricted Party or for another Person or entity. Notwithstanding anything herein to the contrary, nothing in this Section 5(b) shall prevent the Restricted Party or any of its Affiliates from hiring, soliciting, inducing, recruiting or encouraging (i) any employee or consultant whose employment or consultancy has been terminated by the Company or the Alliqua Entities; or (ii) twelve (12) months after the date of termination of employment, any employee or consultant whose employment has been terminated by the employee or the consultant.
(c) During the Restricted Period, the Restricted Party shall not, directly or indirectly: (i) solicit business from, interfere with, attempt to solicit business from, interfere with, or do business with any actual or prospective customer or client with whom the Company or the Alliqua Entities does or has done business (including direct purchasers of the Company’s TheraSkin® product), in any case for the purpose of discussing or securing business or contracts related to the Restricted Business, or (ii) attempt to influence, encourage, persuade or induce any such actual or prospective customer or client whom the Company or the Alliqua Entities does or has done business to reduce the extent of its business dealings with the Alliqua Entities (including direct purchasers of the Company’s TheraSkin® product).
(d) The Restricted Party shall not, and shall cause any Affiliates not to, disparage or initiate negative publicity about the Company, the Alliqua Entities, or any of their respective employees, agents, business, policies, products, or services.
(e) If the Restricted Party violates any of the restrictions contained in this Article 5, the Restricted Period shall be suspended and shall not run in favor of the Restricted Party from the time of commencement of any violation until the time when the Restricted Party ceases the violation.
6. Remedies. The Restricted Party acknowledges that the restrictions contained herein, in view of the nature of the Company’s business and the businesses of the Alliqua Entities, are reasonable and necessary to protect their legitimate business interests, business goodwill and reputation, and that any violation of these restrictions would result in irreparable injury and continuing damage to them, and that money damages would not be a sufficient remedy for any such breach or threatened breach. Therefore, the Restricted Party agrees that the Alliqua Entities shall be entitled to seek a temporary restraining order and injunctive relief restraining the Restricted Party from the commission of any breach or threatened breach of any covenants herein, without the necessity of establishing irreparable harm or the posting of a bond, and to recover from the Restricted Party damages incurred, as well as the attorneys’ fees, costs and expenses related to any breach or threatened breach of this Agreement and enforcement of this Agreement. Nothing contained in this Agreement shall be construed as prohibiting the Alliqua Entities from pursuing any other remedies available to them for any breach or threatened breach, including, without limitation, the recovery of money damages, attorneys’ fees, and costs. The existence of any claim or cause of action by the Restricted Party, whether predicated on this Agreement or otherwise, shall not constitute a defense to the enforcement of the restrictive covenants contained herein, or preclude injunctive relief.
7. Assignment; Binding Agreement. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors and permitted assigns. The Restricted Party may not assign this Agreement to a third party. The Alliqua Entities may assign their rights, together with their obligations hereunder, to any Affiliates and/or subsidiary or any successor thereto or any purchaser of substantially all of their assets.
8. Reformation. The Restricted Party agrees that in the event any of the covenants contained herein shall be held by any court to be effective in any particular area or jurisdiction only if said covenant is modified to limit its duration or scope, then the court shall have such authority to so reform the covenant and the parties hereto shall consider such covenant(s) and/or other provisions to be amended and modified with respect to that particular area or jurisdiction so as to comply with the order of any such court and, as to all other jurisdictions, the covenants contained herein shall remain in full force and effect as originally written.
9. Partial Invalidity. In the event any court of competent jurisdiction holds any provision of this Agreement to be invalid or unenforceable, such invalid or unenforceable portion(s) shall be limited or excluded from this Agreement to the minimum extent required, and the remaining provisions shall not be affected or invalidated and shall remain in full force and effect.
10. Waiver. The rights and remedies of the parties to this Agreement are cumulative and without prejudice to any other rights or remedies under applicable law. Neither the failure nor any delay by any party in exercising any right, power or privilege under this Agreement will operate as a waiver of such right, power or privilege, and no single or partial exercise of any such right, power or privilege will preclude any other or further exercise of such right, power or privilege or the exercise of any other right, power or privilege. To the maximum extent permitted by applicable law, (a) no claim or right arising out of this Agreement can be discharged by one party, in whole or in part, by a waiver or renunciation of the claim or right unless in writing signed by the other party; (b) no waiver that may be given by a party will be applicable, except in the specific instance for which it is given; and (c) no notice or demand on one party will be deemed to be a waiver of any obligation of such party or of the right of the party giving such notice or demand to take further action without notice or demand as provided in this Agreement.
11. Entire Agreement. This Agreement, together with the Contribution and Merger Agreement, constitutes the entire agreement between the parties with respect to the subject matter hereof, and fully supersedes all prior and contemporaneous negotiations, promises, understandings, representations, writings, discussions and/or agreements between the parties, whether written or oral, pertaining to or concerning the subject matter of this Agreement. No oral statements or other prior written material not specifically incorporated into this Agreement shall be of any force or effect, and no changes in or additions to this Agreement shall be recognized, unless incorporated into this Agreement by written amendment, such amendment to become effective on the date stipulated in it. Any amendment to this Agreement must be signed by all parties to this Agreement.
12. Controlling Law and Venue. This Agreement shall be governed by and construed under the laws of the Commonwealth of Virginia. Venue of any litigation arising from this Agreement shall be in the United States District Court for the Eastern District of Virginia, or a state court of competent jurisdiction in Newport News, Virginia. The Restricted Party consents to personal jurisdiction of the United States District Court for the Eastern District of Virginia, or a state court of competent jurisdiction in Newport News, Virginia for any dispute relating to or arising out of this Agreement, and the Restricted Party agrees that the Restricted Party shall not challenge personal or subject matter jurisdiction in such courts.
13. Counterparts. This Agreement may be executed by the parties in multiple counterparts, whether or not all signatories appear on these counterparts (including via electronic signatures and exchange of PDF documents via email), each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
{Remainder of Page Intentionally Left Blank}
IN WITNESS WHEREOF, the parties have executed this Agreement, effective as of the Effective Date and subject to the consummation of the transactions contemplated by the Contribution and Merger Agreement.
THE RESTRICTED PARTY: Signature:
Printed Name:
Date:
THE COMPANIES: ALLIQUA HOLDINGS, INC
Signature:
Name:
Title:
Date:
ALLIQUA BIOMEDICAL, INC.
Signature:
Name:
Title:
Date:
Signature Page to Non-Competition and Non-Solicitation Agreement
| Entailment |
623_nda-13 | 623_nda-13_0 | Q: Receiving Party may acquire information similar to Confidential Information from a third party.
Text: Exhibit 10.3
NON-COMPETITION AGREEMENT
WHEREAS, Alliqua BioMedical, Inc. (“Alliqua”), Alliqua Holdings, Inc., a Delaware corporation and a wholly-owned subsidiary of Alliqua (“Parent” and together with Alliqua, the “Alliqua Entities”), Chesapeake Merger Corp., a Delaware corporation and a wholly-owned subsidiary of Parent, and Soluble Systems, LLC, a Virginia limited liability company (the “Company”), have entered into that certain Contribution Agreement and Plan of Merger, dated as of October 5, 2016 (the “Contribution and Merger Agreement”);
WHEREAS, [●] (the “Restricted Party”) acknowledges that a material aspect of the Alliqua Entities’ decision to enter into the Contribution and Merger Agreement is the value and maintenance of the reputation and goodwill of the Company;
WHEREAS, as a material inducement to the Alliqua Entities to enter into the Contribution and Merger Agreement and consummate the transactions contemplated thereby, the Company has agreed that the Restricted Party shall execute this Agreement; and WHEREAS, the Contribution and Merger Agreement contemplates that the Restricted Party shall execute this Agreement;
NOW, THEREFORE, in consideration of the recitals and the covenants, representations, warranties, conditions and agreement hereinafter expressed, the Alliqua Entities and the Restricted Party agree as follows:
1. Effective Date. Subject to the Closing of the transactions contemplated by the Contribution and Merger Agreement, this Agreement shall be effective as of and on the Closing Date (the “Effective Date”).
2. Definitions. For all purposes under this Agreement, the following terms shall have the meaning set forth below. Any terms used but not otherwise defined herein shall have the respective meanings ascribed to them in the Contribution and Merger Agreement:
(a) “Confidential Information” includes any trade secrets or confidential or proprietary information of the Company, its Affiliates, and its and their respective predecessors and successors, including, but not limited to, the following: methods of operation, products, inventions, services, processes, equipment, know-how, technology, technical data, policies, strategies, designs, formulas, developmental or experimental work, improvements, discoveries, research, plans for research or future products and services, database schemas or tables, software, development tools or techniques, training procedures, training techniques, training manuals, business information, marketing and sales methods, plans and strategies, competitors, markets, market surveys, techniques, production processes, infrastructure, business plans, distribution and installation plans, processes and strategies, methodologies, budgets, financial data and information, customer and client information, prices and costs, fees, customer and client lists and profiles, employee, customer and client nonpublic personal information, supplier lists, business records, product construction, product specifications, audit processes, pricing strategies, business strategies, marketing and promotional practices, management methods and information, plans, reports, recommendations and conclusions, information regarding the skills and compensation of employees and contractors, and other business information disclosed to the Restricted Party by the Company, either directly or indirectly, in writing, orally, or by drawings or observation. “Confidential Information” does not include, and there shall be no obligation hereunder with respect to, information that: (i) is generally available to the public on the date of this Agreement; (ii) becomes generally available to the public other than as a result of a disclosure not otherwise permissible hereunder, (iii) was available, or becomes available, to the Restricted Party from a source other than the Alliqua Entities or its Representatives, provided that such source, to the Restricted Party’s actual knowledge after reasonable inquiry, was lawfully permitted to disclose such information; or (iv) has been independently acquired or developed by the Restricted Party without violating any of the Restricted Party’s obligations under this Agreement or otherwise owed to the Alliqua Entities or its Representatives.
(b) “Restricted Business” shall mean the business of providing a skin substitute for chronic wound care.
(c) “Restricted Period” shall mean a period commencing from the Effective Date until the two (2)-year anniversary of the Effective Date.
3. Acknowledgement.
(a) This Agreement is entered into in connection with the transactions contemplated by the Contribution and Merger Agreement. The parties acknowledge that it would be detrimental to the Alliqua Entities if the Restricted Party were to compete with the Alliqua Entities any time during the Restricted Period or to solicit customers, clients, employees or contractors of the Company or Alliqua Entities at any time during the Restricted Period.
(b) The Restricted Party recognizes that the covenants set forth herein are an essential part of the transactions contemplated by the Contribution and Merger Agreement and that but for the agreement of the Restricted Party to comply with such covenants, the Alliqua Entities would not enter into the Contribution and Merger Agreement. The Restricted Party acknowledges and agrees that the covenants set forth herein are necessary to protect the legitimate business interests of the Alliqua Entities acquired pursuant to the Contribution and Merger Agreement. In addition, the Restricted Party acknowledges that the consideration paid pursuant to the terms of the Contribution and Merger Agreement is paid in part as consideration for customer and client contacts, marketplace reputation and goodwill developed by the Restricted Party for the Company and the covenants set forth herein are necessary for the Alliqua Entities to receive the full benefit of the Contribution and Merger Agreement.
(c) The Restricted Party hereby acknowledges the broad territorial scope of the covenants contained in this Agreement, but acknowledges and agrees that the restrictions are reasonable and enforceable in view of, among other things, (i) the narrow range of activities prohibited, (ii) the Company’s products and services are marketed on a wide geographic scope, (iii) the Confidential Information of the Company to which the Restricted Party had, has or will have access, (iv) the fact that a business that competes with Alliqua Entities could greatly benefit if it were to obtain the Confidential Information of the Company, (v) the Alliqua Entities acquisition of the Company Intellectual Property and goodwill of the Company pursuant to the transactions contemplated by the Contribution and Merger Agreement, (vi) the fact that the Restricted Party would have an unfair competitive advantage if the Restricted Party were allowed to engage in the competitive activities prohibited by this Agreement in light of the Confidential Information and/or goodwill that the Restricted Party has acquired, and (vii) the provisions of this Agreement are reasonable and necessary to protect and preserve the Alliqua Entities’ interests in and right to use and operate the Company’s business from and after Closing.
4. Non-Disclosure. The Restricted Party agrees not to dispute, contest, or deny any ownership rights of the Alliqua Entities of the Confidential Information or the Company Intellectual Property. The Restricted Party agrees to preserve and protect the confidentiality of all Confidential Information. The Restricted Party shall not directly or indirectly, disclose to any unauthorized person or use for the Restricted Party’s own account any Confidential Information. The Restricted Party shall hold all Confidential Information in the strictest confidence, and take all commercially reasonable precautions to prevent its inadvertent disclosure to any unauthorized person. The Restricted Party shall not, directly or indirectly, other than on behalf of the Alliqua Entities, utilize, disclose or make available to any other person or entity, any of the Confidential Information. Notwithstanding anything herein to the contrary, the covenants in this Section 4 shall not apply to Confidential Information that the Restricted Party is required to disclose by applicable Law, after providing written notice to the Alliqua Entities before producing the information, which notice shall be given as soon as practicable, so that the Alliqua Entities, at their sole expense, may seek a protective order or other appropriate remedy.
5. Non-Competition and Non-Solicitation. In exchange for the consideration contemplated under the Contribution and Merger Agreement and the consummation of the other transactions contemplated by the Contribution and Merger Agreement:
(a) During the Restricted Period, the Restricted Party shall not, directly or indirectly, own, manage, engage in, operate, control, work for, consult with, render services for, do business with, maintain any interest in (proprietary, financial or otherwise) or participate in the ownership, management, operation or control of, any business, whether in corporate, proprietorship or partnership form or otherwise, engage in the Restricted Business, other than on behalf of the Alliqua Entities; provided, that the restrictions contained in this Section 5(a) shall not restrict the acquisition by the Restricted Party, directly or indirectly, of less than 5% of the outstanding capital stock of any publicly traded company engaged in a Restricted Business.
(b) During the Restricted Period, the Restricted Party shall not, directly or indirectly, solicit, induce, recruit or encourage anyone who is a consultant or employee of the Company or the Alliqua Entities to terminate his or her employment or consulting relationship with the Company or the Alliqua Entities, or without the consent of the Alliqua Entities, hire, retain or engage any such person for the Restricted Party or for another Person or entity. Notwithstanding anything herein to the contrary, nothing in this Section 5(b) shall prevent the Restricted Party or any of its Affiliates from hiring, soliciting, inducing, recruiting or encouraging (i) any employee or consultant whose employment or consultancy has been terminated by the Company or the Alliqua Entities; or (ii) twelve (12) months after the date of termination of employment, any employee or consultant whose employment has been terminated by the employee or the consultant.
(c) During the Restricted Period, the Restricted Party shall not, directly or indirectly: (i) solicit business from, interfere with, attempt to solicit business from, interfere with, or do business with any actual or prospective customer or client with whom the Company or the Alliqua Entities does or has done business (including direct purchasers of the Company’s TheraSkin® product), in any case for the purpose of discussing or securing business or contracts related to the Restricted Business, or (ii) attempt to influence, encourage, persuade or induce any such actual or prospective customer or client whom the Company or the Alliqua Entities does or has done business to reduce the extent of its business dealings with the Alliqua Entities (including direct purchasers of the Company’s TheraSkin® product).
(d) The Restricted Party shall not, and shall cause any Affiliates not to, disparage or initiate negative publicity about the Company, the Alliqua Entities, or any of their respective employees, agents, business, policies, products, or services.
(e) If the Restricted Party violates any of the restrictions contained in this Article 5, the Restricted Period shall be suspended and shall not run in favor of the Restricted Party from the time of commencement of any violation until the time when the Restricted Party ceases the violation.
6. Remedies. The Restricted Party acknowledges that the restrictions contained herein, in view of the nature of the Company’s business and the businesses of the Alliqua Entities, are reasonable and necessary to protect their legitimate business interests, business goodwill and reputation, and that any violation of these restrictions would result in irreparable injury and continuing damage to them, and that money damages would not be a sufficient remedy for any such breach or threatened breach. Therefore, the Restricted Party agrees that the Alliqua Entities shall be entitled to seek a temporary restraining order and injunctive relief restraining the Restricted Party from the commission of any breach or threatened breach of any covenants herein, without the necessity of establishing irreparable harm or the posting of a bond, and to recover from the Restricted Party damages incurred, as well as the attorneys’ fees, costs and expenses related to any breach or threatened breach of this Agreement and enforcement of this Agreement. Nothing contained in this Agreement shall be construed as prohibiting the Alliqua Entities from pursuing any other remedies available to them for any breach or threatened breach, including, without limitation, the recovery of money damages, attorneys’ fees, and costs. The existence of any claim or cause of action by the Restricted Party, whether predicated on this Agreement or otherwise, shall not constitute a defense to the enforcement of the restrictive covenants contained herein, or preclude injunctive relief.
7. Assignment; Binding Agreement. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors and permitted assigns. The Restricted Party may not assign this Agreement to a third party. The Alliqua Entities may assign their rights, together with their obligations hereunder, to any Affiliates and/or subsidiary or any successor thereto or any purchaser of substantially all of their assets.
8. Reformation. The Restricted Party agrees that in the event any of the covenants contained herein shall be held by any court to be effective in any particular area or jurisdiction only if said covenant is modified to limit its duration or scope, then the court shall have such authority to so reform the covenant and the parties hereto shall consider such covenant(s) and/or other provisions to be amended and modified with respect to that particular area or jurisdiction so as to comply with the order of any such court and, as to all other jurisdictions, the covenants contained herein shall remain in full force and effect as originally written.
9. Partial Invalidity. In the event any court of competent jurisdiction holds any provision of this Agreement to be invalid or unenforceable, such invalid or unenforceable portion(s) shall be limited or excluded from this Agreement to the minimum extent required, and the remaining provisions shall not be affected or invalidated and shall remain in full force and effect.
10. Waiver. The rights and remedies of the parties to this Agreement are cumulative and without prejudice to any other rights or remedies under applicable law. Neither the failure nor any delay by any party in exercising any right, power or privilege under this Agreement will operate as a waiver of such right, power or privilege, and no single or partial exercise of any such right, power or privilege will preclude any other or further exercise of such right, power or privilege or the exercise of any other right, power or privilege. To the maximum extent permitted by applicable law, (a) no claim or right arising out of this Agreement can be discharged by one party, in whole or in part, by a waiver or renunciation of the claim or right unless in writing signed by the other party; (b) no waiver that may be given by a party will be applicable, except in the specific instance for which it is given; and (c) no notice or demand on one party will be deemed to be a waiver of any obligation of such party or of the right of the party giving such notice or demand to take further action without notice or demand as provided in this Agreement.
11. Entire Agreement. This Agreement, together with the Contribution and Merger Agreement, constitutes the entire agreement between the parties with respect to the subject matter hereof, and fully supersedes all prior and contemporaneous negotiations, promises, understandings, representations, writings, discussions and/or agreements between the parties, whether written or oral, pertaining to or concerning the subject matter of this Agreement. No oral statements or other prior written material not specifically incorporated into this Agreement shall be of any force or effect, and no changes in or additions to this Agreement shall be recognized, unless incorporated into this Agreement by written amendment, such amendment to become effective on the date stipulated in it. Any amendment to this Agreement must be signed by all parties to this Agreement.
12. Controlling Law and Venue. This Agreement shall be governed by and construed under the laws of the Commonwealth of Virginia. Venue of any litigation arising from this Agreement shall be in the United States District Court for the Eastern District of Virginia, or a state court of competent jurisdiction in Newport News, Virginia. The Restricted Party consents to personal jurisdiction of the United States District Court for the Eastern District of Virginia, or a state court of competent jurisdiction in Newport News, Virginia for any dispute relating to or arising out of this Agreement, and the Restricted Party agrees that the Restricted Party shall not challenge personal or subject matter jurisdiction in such courts.
13. Counterparts. This Agreement may be executed by the parties in multiple counterparts, whether or not all signatories appear on these counterparts (including via electronic signatures and exchange of PDF documents via email), each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
{Remainder of Page Intentionally Left Blank}
IN WITNESS WHEREOF, the parties have executed this Agreement, effective as of the Effective Date and subject to the consummation of the transactions contemplated by the Contribution and Merger Agreement.
THE RESTRICTED PARTY: Signature:
Printed Name:
Date:
THE COMPANIES: ALLIQUA HOLDINGS, INC
Signature:
Name:
Title:
Date:
ALLIQUA BIOMEDICAL, INC.
Signature:
Name:
Title:
Date:
Signature Page to Non-Competition and Non-Solicitation Agreement
| Entailment |
623_nda-5 | 623_nda-5_0 | Q: Receiving Party may share some Confidential Information with some of Receiving Party's employees.
Text: Exhibit 10.3
NON-COMPETITION AGREEMENT
WHEREAS, Alliqua BioMedical, Inc. (“Alliqua”), Alliqua Holdings, Inc., a Delaware corporation and a wholly-owned subsidiary of Alliqua (“Parent” and together with Alliqua, the “Alliqua Entities”), Chesapeake Merger Corp., a Delaware corporation and a wholly-owned subsidiary of Parent, and Soluble Systems, LLC, a Virginia limited liability company (the “Company”), have entered into that certain Contribution Agreement and Plan of Merger, dated as of October 5, 2016 (the “Contribution and Merger Agreement”);
WHEREAS, [●] (the “Restricted Party”) acknowledges that a material aspect of the Alliqua Entities’ decision to enter into the Contribution and Merger Agreement is the value and maintenance of the reputation and goodwill of the Company;
WHEREAS, as a material inducement to the Alliqua Entities to enter into the Contribution and Merger Agreement and consummate the transactions contemplated thereby, the Company has agreed that the Restricted Party shall execute this Agreement; and WHEREAS, the Contribution and Merger Agreement contemplates that the Restricted Party shall execute this Agreement;
NOW, THEREFORE, in consideration of the recitals and the covenants, representations, warranties, conditions and agreement hereinafter expressed, the Alliqua Entities and the Restricted Party agree as follows:
1. Effective Date. Subject to the Closing of the transactions contemplated by the Contribution and Merger Agreement, this Agreement shall be effective as of and on the Closing Date (the “Effective Date”).
2. Definitions. For all purposes under this Agreement, the following terms shall have the meaning set forth below. Any terms used but not otherwise defined herein shall have the respective meanings ascribed to them in the Contribution and Merger Agreement:
(a) “Confidential Information” includes any trade secrets or confidential or proprietary information of the Company, its Affiliates, and its and their respective predecessors and successors, including, but not limited to, the following: methods of operation, products, inventions, services, processes, equipment, know-how, technology, technical data, policies, strategies, designs, formulas, developmental or experimental work, improvements, discoveries, research, plans for research or future products and services, database schemas or tables, software, development tools or techniques, training procedures, training techniques, training manuals, business information, marketing and sales methods, plans and strategies, competitors, markets, market surveys, techniques, production processes, infrastructure, business plans, distribution and installation plans, processes and strategies, methodologies, budgets, financial data and information, customer and client information, prices and costs, fees, customer and client lists and profiles, employee, customer and client nonpublic personal information, supplier lists, business records, product construction, product specifications, audit processes, pricing strategies, business strategies, marketing and promotional practices, management methods and information, plans, reports, recommendations and conclusions, information regarding the skills and compensation of employees and contractors, and other business information disclosed to the Restricted Party by the Company, either directly or indirectly, in writing, orally, or by drawings or observation. “Confidential Information” does not include, and there shall be no obligation hereunder with respect to, information that: (i) is generally available to the public on the date of this Agreement; (ii) becomes generally available to the public other than as a result of a disclosure not otherwise permissible hereunder, (iii) was available, or becomes available, to the Restricted Party from a source other than the Alliqua Entities or its Representatives, provided that such source, to the Restricted Party’s actual knowledge after reasonable inquiry, was lawfully permitted to disclose such information; or (iv) has been independently acquired or developed by the Restricted Party without violating any of the Restricted Party’s obligations under this Agreement or otherwise owed to the Alliqua Entities or its Representatives.
(b) “Restricted Business” shall mean the business of providing a skin substitute for chronic wound care.
(c) “Restricted Period” shall mean a period commencing from the Effective Date until the two (2)-year anniversary of the Effective Date.
3. Acknowledgement.
(a) This Agreement is entered into in connection with the transactions contemplated by the Contribution and Merger Agreement. The parties acknowledge that it would be detrimental to the Alliqua Entities if the Restricted Party were to compete with the Alliqua Entities any time during the Restricted Period or to solicit customers, clients, employees or contractors of the Company or Alliqua Entities at any time during the Restricted Period.
(b) The Restricted Party recognizes that the covenants set forth herein are an essential part of the transactions contemplated by the Contribution and Merger Agreement and that but for the agreement of the Restricted Party to comply with such covenants, the Alliqua Entities would not enter into the Contribution and Merger Agreement. The Restricted Party acknowledges and agrees that the covenants set forth herein are necessary to protect the legitimate business interests of the Alliqua Entities acquired pursuant to the Contribution and Merger Agreement. In addition, the Restricted Party acknowledges that the consideration paid pursuant to the terms of the Contribution and Merger Agreement is paid in part as consideration for customer and client contacts, marketplace reputation and goodwill developed by the Restricted Party for the Company and the covenants set forth herein are necessary for the Alliqua Entities to receive the full benefit of the Contribution and Merger Agreement.
(c) The Restricted Party hereby acknowledges the broad territorial scope of the covenants contained in this Agreement, but acknowledges and agrees that the restrictions are reasonable and enforceable in view of, among other things, (i) the narrow range of activities prohibited, (ii) the Company’s products and services are marketed on a wide geographic scope, (iii) the Confidential Information of the Company to which the Restricted Party had, has or will have access, (iv) the fact that a business that competes with Alliqua Entities could greatly benefit if it were to obtain the Confidential Information of the Company, (v) the Alliqua Entities acquisition of the Company Intellectual Property and goodwill of the Company pursuant to the transactions contemplated by the Contribution and Merger Agreement, (vi) the fact that the Restricted Party would have an unfair competitive advantage if the Restricted Party were allowed to engage in the competitive activities prohibited by this Agreement in light of the Confidential Information and/or goodwill that the Restricted Party has acquired, and (vii) the provisions of this Agreement are reasonable and necessary to protect and preserve the Alliqua Entities’ interests in and right to use and operate the Company’s business from and after Closing.
4. Non-Disclosure. The Restricted Party agrees not to dispute, contest, or deny any ownership rights of the Alliqua Entities of the Confidential Information or the Company Intellectual Property. The Restricted Party agrees to preserve and protect the confidentiality of all Confidential Information. The Restricted Party shall not directly or indirectly, disclose to any unauthorized person or use for the Restricted Party’s own account any Confidential Information. The Restricted Party shall hold all Confidential Information in the strictest confidence, and take all commercially reasonable precautions to prevent its inadvertent disclosure to any unauthorized person. The Restricted Party shall not, directly or indirectly, other than on behalf of the Alliqua Entities, utilize, disclose or make available to any other person or entity, any of the Confidential Information. Notwithstanding anything herein to the contrary, the covenants in this Section 4 shall not apply to Confidential Information that the Restricted Party is required to disclose by applicable Law, after providing written notice to the Alliqua Entities before producing the information, which notice shall be given as soon as practicable, so that the Alliqua Entities, at their sole expense, may seek a protective order or other appropriate remedy.
5. Non-Competition and Non-Solicitation. In exchange for the consideration contemplated under the Contribution and Merger Agreement and the consummation of the other transactions contemplated by the Contribution and Merger Agreement:
(a) During the Restricted Period, the Restricted Party shall not, directly or indirectly, own, manage, engage in, operate, control, work for, consult with, render services for, do business with, maintain any interest in (proprietary, financial or otherwise) or participate in the ownership, management, operation or control of, any business, whether in corporate, proprietorship or partnership form or otherwise, engage in the Restricted Business, other than on behalf of the Alliqua Entities; provided, that the restrictions contained in this Section 5(a) shall not restrict the acquisition by the Restricted Party, directly or indirectly, of less than 5% of the outstanding capital stock of any publicly traded company engaged in a Restricted Business.
(b) During the Restricted Period, the Restricted Party shall not, directly or indirectly, solicit, induce, recruit or encourage anyone who is a consultant or employee of the Company or the Alliqua Entities to terminate his or her employment or consulting relationship with the Company or the Alliqua Entities, or without the consent of the Alliqua Entities, hire, retain or engage any such person for the Restricted Party or for another Person or entity. Notwithstanding anything herein to the contrary, nothing in this Section 5(b) shall prevent the Restricted Party or any of its Affiliates from hiring, soliciting, inducing, recruiting or encouraging (i) any employee or consultant whose employment or consultancy has been terminated by the Company or the Alliqua Entities; or (ii) twelve (12) months after the date of termination of employment, any employee or consultant whose employment has been terminated by the employee or the consultant.
(c) During the Restricted Period, the Restricted Party shall not, directly or indirectly: (i) solicit business from, interfere with, attempt to solicit business from, interfere with, or do business with any actual or prospective customer or client with whom the Company or the Alliqua Entities does or has done business (including direct purchasers of the Company’s TheraSkin® product), in any case for the purpose of discussing or securing business or contracts related to the Restricted Business, or (ii) attempt to influence, encourage, persuade or induce any such actual or prospective customer or client whom the Company or the Alliqua Entities does or has done business to reduce the extent of its business dealings with the Alliqua Entities (including direct purchasers of the Company’s TheraSkin® product).
(d) The Restricted Party shall not, and shall cause any Affiliates not to, disparage or initiate negative publicity about the Company, the Alliqua Entities, or any of their respective employees, agents, business, policies, products, or services.
(e) If the Restricted Party violates any of the restrictions contained in this Article 5, the Restricted Period shall be suspended and shall not run in favor of the Restricted Party from the time of commencement of any violation until the time when the Restricted Party ceases the violation.
6. Remedies. The Restricted Party acknowledges that the restrictions contained herein, in view of the nature of the Company’s business and the businesses of the Alliqua Entities, are reasonable and necessary to protect their legitimate business interests, business goodwill and reputation, and that any violation of these restrictions would result in irreparable injury and continuing damage to them, and that money damages would not be a sufficient remedy for any such breach or threatened breach. Therefore, the Restricted Party agrees that the Alliqua Entities shall be entitled to seek a temporary restraining order and injunctive relief restraining the Restricted Party from the commission of any breach or threatened breach of any covenants herein, without the necessity of establishing irreparable harm or the posting of a bond, and to recover from the Restricted Party damages incurred, as well as the attorneys’ fees, costs and expenses related to any breach or threatened breach of this Agreement and enforcement of this Agreement. Nothing contained in this Agreement shall be construed as prohibiting the Alliqua Entities from pursuing any other remedies available to them for any breach or threatened breach, including, without limitation, the recovery of money damages, attorneys’ fees, and costs. The existence of any claim or cause of action by the Restricted Party, whether predicated on this Agreement or otherwise, shall not constitute a defense to the enforcement of the restrictive covenants contained herein, or preclude injunctive relief.
7. Assignment; Binding Agreement. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors and permitted assigns. The Restricted Party may not assign this Agreement to a third party. The Alliqua Entities may assign their rights, together with their obligations hereunder, to any Affiliates and/or subsidiary or any successor thereto or any purchaser of substantially all of their assets.
8. Reformation. The Restricted Party agrees that in the event any of the covenants contained herein shall be held by any court to be effective in any particular area or jurisdiction only if said covenant is modified to limit its duration or scope, then the court shall have such authority to so reform the covenant and the parties hereto shall consider such covenant(s) and/or other provisions to be amended and modified with respect to that particular area or jurisdiction so as to comply with the order of any such court and, as to all other jurisdictions, the covenants contained herein shall remain in full force and effect as originally written.
9. Partial Invalidity. In the event any court of competent jurisdiction holds any provision of this Agreement to be invalid or unenforceable, such invalid or unenforceable portion(s) shall be limited or excluded from this Agreement to the minimum extent required, and the remaining provisions shall not be affected or invalidated and shall remain in full force and effect.
10. Waiver. The rights and remedies of the parties to this Agreement are cumulative and without prejudice to any other rights or remedies under applicable law. Neither the failure nor any delay by any party in exercising any right, power or privilege under this Agreement will operate as a waiver of such right, power or privilege, and no single or partial exercise of any such right, power or privilege will preclude any other or further exercise of such right, power or privilege or the exercise of any other right, power or privilege. To the maximum extent permitted by applicable law, (a) no claim or right arising out of this Agreement can be discharged by one party, in whole or in part, by a waiver or renunciation of the claim or right unless in writing signed by the other party; (b) no waiver that may be given by a party will be applicable, except in the specific instance for which it is given; and (c) no notice or demand on one party will be deemed to be a waiver of any obligation of such party or of the right of the party giving such notice or demand to take further action without notice or demand as provided in this Agreement.
11. Entire Agreement. This Agreement, together with the Contribution and Merger Agreement, constitutes the entire agreement between the parties with respect to the subject matter hereof, and fully supersedes all prior and contemporaneous negotiations, promises, understandings, representations, writings, discussions and/or agreements between the parties, whether written or oral, pertaining to or concerning the subject matter of this Agreement. No oral statements or other prior written material not specifically incorporated into this Agreement shall be of any force or effect, and no changes in or additions to this Agreement shall be recognized, unless incorporated into this Agreement by written amendment, such amendment to become effective on the date stipulated in it. Any amendment to this Agreement must be signed by all parties to this Agreement.
12. Controlling Law and Venue. This Agreement shall be governed by and construed under the laws of the Commonwealth of Virginia. Venue of any litigation arising from this Agreement shall be in the United States District Court for the Eastern District of Virginia, or a state court of competent jurisdiction in Newport News, Virginia. The Restricted Party consents to personal jurisdiction of the United States District Court for the Eastern District of Virginia, or a state court of competent jurisdiction in Newport News, Virginia for any dispute relating to or arising out of this Agreement, and the Restricted Party agrees that the Restricted Party shall not challenge personal or subject matter jurisdiction in such courts.
13. Counterparts. This Agreement may be executed by the parties in multiple counterparts, whether or not all signatories appear on these counterparts (including via electronic signatures and exchange of PDF documents via email), each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
{Remainder of Page Intentionally Left Blank}
IN WITNESS WHEREOF, the parties have executed this Agreement, effective as of the Effective Date and subject to the consummation of the transactions contemplated by the Contribution and Merger Agreement.
THE RESTRICTED PARTY: Signature:
Printed Name:
Date:
THE COMPANIES: ALLIQUA HOLDINGS, INC
Signature:
Name:
Title:
Date:
ALLIQUA BIOMEDICAL, INC.
Signature:
Name:
Title:
Date:
Signature Page to Non-Competition and Non-Solicitation Agreement
| Contradiction |
623_nda-4 | 623_nda-4_0 | Q: Receiving Party shall not use any Confidential Information for any purpose other than the purposes stated in Agreement.
Text: Exhibit 10.3
NON-COMPETITION AGREEMENT
WHEREAS, Alliqua BioMedical, Inc. (“Alliqua”), Alliqua Holdings, Inc., a Delaware corporation and a wholly-owned subsidiary of Alliqua (“Parent” and together with Alliqua, the “Alliqua Entities”), Chesapeake Merger Corp., a Delaware corporation and a wholly-owned subsidiary of Parent, and Soluble Systems, LLC, a Virginia limited liability company (the “Company”), have entered into that certain Contribution Agreement and Plan of Merger, dated as of October 5, 2016 (the “Contribution and Merger Agreement”);
WHEREAS, [●] (the “Restricted Party”) acknowledges that a material aspect of the Alliqua Entities’ decision to enter into the Contribution and Merger Agreement is the value and maintenance of the reputation and goodwill of the Company;
WHEREAS, as a material inducement to the Alliqua Entities to enter into the Contribution and Merger Agreement and consummate the transactions contemplated thereby, the Company has agreed that the Restricted Party shall execute this Agreement; and WHEREAS, the Contribution and Merger Agreement contemplates that the Restricted Party shall execute this Agreement;
NOW, THEREFORE, in consideration of the recitals and the covenants, representations, warranties, conditions and agreement hereinafter expressed, the Alliqua Entities and the Restricted Party agree as follows:
1. Effective Date. Subject to the Closing of the transactions contemplated by the Contribution and Merger Agreement, this Agreement shall be effective as of and on the Closing Date (the “Effective Date”).
2. Definitions. For all purposes under this Agreement, the following terms shall have the meaning set forth below. Any terms used but not otherwise defined herein shall have the respective meanings ascribed to them in the Contribution and Merger Agreement:
(a) “Confidential Information” includes any trade secrets or confidential or proprietary information of the Company, its Affiliates, and its and their respective predecessors and successors, including, but not limited to, the following: methods of operation, products, inventions, services, processes, equipment, know-how, technology, technical data, policies, strategies, designs, formulas, developmental or experimental work, improvements, discoveries, research, plans for research or future products and services, database schemas or tables, software, development tools or techniques, training procedures, training techniques, training manuals, business information, marketing and sales methods, plans and strategies, competitors, markets, market surveys, techniques, production processes, infrastructure, business plans, distribution and installation plans, processes and strategies, methodologies, budgets, financial data and information, customer and client information, prices and costs, fees, customer and client lists and profiles, employee, customer and client nonpublic personal information, supplier lists, business records, product construction, product specifications, audit processes, pricing strategies, business strategies, marketing and promotional practices, management methods and information, plans, reports, recommendations and conclusions, information regarding the skills and compensation of employees and contractors, and other business information disclosed to the Restricted Party by the Company, either directly or indirectly, in writing, orally, or by drawings or observation. “Confidential Information” does not include, and there shall be no obligation hereunder with respect to, information that: (i) is generally available to the public on the date of this Agreement; (ii) becomes generally available to the public other than as a result of a disclosure not otherwise permissible hereunder, (iii) was available, or becomes available, to the Restricted Party from a source other than the Alliqua Entities or its Representatives, provided that such source, to the Restricted Party’s actual knowledge after reasonable inquiry, was lawfully permitted to disclose such information; or (iv) has been independently acquired or developed by the Restricted Party without violating any of the Restricted Party’s obligations under this Agreement or otherwise owed to the Alliqua Entities or its Representatives.
(b) “Restricted Business” shall mean the business of providing a skin substitute for chronic wound care.
(c) “Restricted Period” shall mean a period commencing from the Effective Date until the two (2)-year anniversary of the Effective Date.
3. Acknowledgement.
(a) This Agreement is entered into in connection with the transactions contemplated by the Contribution and Merger Agreement. The parties acknowledge that it would be detrimental to the Alliqua Entities if the Restricted Party were to compete with the Alliqua Entities any time during the Restricted Period or to solicit customers, clients, employees or contractors of the Company or Alliqua Entities at any time during the Restricted Period.
(b) The Restricted Party recognizes that the covenants set forth herein are an essential part of the transactions contemplated by the Contribution and Merger Agreement and that but for the agreement of the Restricted Party to comply with such covenants, the Alliqua Entities would not enter into the Contribution and Merger Agreement. The Restricted Party acknowledges and agrees that the covenants set forth herein are necessary to protect the legitimate business interests of the Alliqua Entities acquired pursuant to the Contribution and Merger Agreement. In addition, the Restricted Party acknowledges that the consideration paid pursuant to the terms of the Contribution and Merger Agreement is paid in part as consideration for customer and client contacts, marketplace reputation and goodwill developed by the Restricted Party for the Company and the covenants set forth herein are necessary for the Alliqua Entities to receive the full benefit of the Contribution and Merger Agreement.
(c) The Restricted Party hereby acknowledges the broad territorial scope of the covenants contained in this Agreement, but acknowledges and agrees that the restrictions are reasonable and enforceable in view of, among other things, (i) the narrow range of activities prohibited, (ii) the Company’s products and services are marketed on a wide geographic scope, (iii) the Confidential Information of the Company to which the Restricted Party had, has or will have access, (iv) the fact that a business that competes with Alliqua Entities could greatly benefit if it were to obtain the Confidential Information of the Company, (v) the Alliqua Entities acquisition of the Company Intellectual Property and goodwill of the Company pursuant to the transactions contemplated by the Contribution and Merger Agreement, (vi) the fact that the Restricted Party would have an unfair competitive advantage if the Restricted Party were allowed to engage in the competitive activities prohibited by this Agreement in light of the Confidential Information and/or goodwill that the Restricted Party has acquired, and (vii) the provisions of this Agreement are reasonable and necessary to protect and preserve the Alliqua Entities’ interests in and right to use and operate the Company’s business from and after Closing.
4. Non-Disclosure. The Restricted Party agrees not to dispute, contest, or deny any ownership rights of the Alliqua Entities of the Confidential Information or the Company Intellectual Property. The Restricted Party agrees to preserve and protect the confidentiality of all Confidential Information. The Restricted Party shall not directly or indirectly, disclose to any unauthorized person or use for the Restricted Party’s own account any Confidential Information. The Restricted Party shall hold all Confidential Information in the strictest confidence, and take all commercially reasonable precautions to prevent its inadvertent disclosure to any unauthorized person. The Restricted Party shall not, directly or indirectly, other than on behalf of the Alliqua Entities, utilize, disclose or make available to any other person or entity, any of the Confidential Information. Notwithstanding anything herein to the contrary, the covenants in this Section 4 shall not apply to Confidential Information that the Restricted Party is required to disclose by applicable Law, after providing written notice to the Alliqua Entities before producing the information, which notice shall be given as soon as practicable, so that the Alliqua Entities, at their sole expense, may seek a protective order or other appropriate remedy.
5. Non-Competition and Non-Solicitation. In exchange for the consideration contemplated under the Contribution and Merger Agreement and the consummation of the other transactions contemplated by the Contribution and Merger Agreement:
(a) During the Restricted Period, the Restricted Party shall not, directly or indirectly, own, manage, engage in, operate, control, work for, consult with, render services for, do business with, maintain any interest in (proprietary, financial or otherwise) or participate in the ownership, management, operation or control of, any business, whether in corporate, proprietorship or partnership form or otherwise, engage in the Restricted Business, other than on behalf of the Alliqua Entities; provided, that the restrictions contained in this Section 5(a) shall not restrict the acquisition by the Restricted Party, directly or indirectly, of less than 5% of the outstanding capital stock of any publicly traded company engaged in a Restricted Business.
(b) During the Restricted Period, the Restricted Party shall not, directly or indirectly, solicit, induce, recruit or encourage anyone who is a consultant or employee of the Company or the Alliqua Entities to terminate his or her employment or consulting relationship with the Company or the Alliqua Entities, or without the consent of the Alliqua Entities, hire, retain or engage any such person for the Restricted Party or for another Person or entity. Notwithstanding anything herein to the contrary, nothing in this Section 5(b) shall prevent the Restricted Party or any of its Affiliates from hiring, soliciting, inducing, recruiting or encouraging (i) any employee or consultant whose employment or consultancy has been terminated by the Company or the Alliqua Entities; or (ii) twelve (12) months after the date of termination of employment, any employee or consultant whose employment has been terminated by the employee or the consultant.
(c) During the Restricted Period, the Restricted Party shall not, directly or indirectly: (i) solicit business from, interfere with, attempt to solicit business from, interfere with, or do business with any actual or prospective customer or client with whom the Company or the Alliqua Entities does or has done business (including direct purchasers of the Company’s TheraSkin® product), in any case for the purpose of discussing or securing business or contracts related to the Restricted Business, or (ii) attempt to influence, encourage, persuade or induce any such actual or prospective customer or client whom the Company or the Alliqua Entities does or has done business to reduce the extent of its business dealings with the Alliqua Entities (including direct purchasers of the Company’s TheraSkin® product).
(d) The Restricted Party shall not, and shall cause any Affiliates not to, disparage or initiate negative publicity about the Company, the Alliqua Entities, or any of their respective employees, agents, business, policies, products, or services.
(e) If the Restricted Party violates any of the restrictions contained in this Article 5, the Restricted Period shall be suspended and shall not run in favor of the Restricted Party from the time of commencement of any violation until the time when the Restricted Party ceases the violation.
6. Remedies. The Restricted Party acknowledges that the restrictions contained herein, in view of the nature of the Company’s business and the businesses of the Alliqua Entities, are reasonable and necessary to protect their legitimate business interests, business goodwill and reputation, and that any violation of these restrictions would result in irreparable injury and continuing damage to them, and that money damages would not be a sufficient remedy for any such breach or threatened breach. Therefore, the Restricted Party agrees that the Alliqua Entities shall be entitled to seek a temporary restraining order and injunctive relief restraining the Restricted Party from the commission of any breach or threatened breach of any covenants herein, without the necessity of establishing irreparable harm or the posting of a bond, and to recover from the Restricted Party damages incurred, as well as the attorneys’ fees, costs and expenses related to any breach or threatened breach of this Agreement and enforcement of this Agreement. Nothing contained in this Agreement shall be construed as prohibiting the Alliqua Entities from pursuing any other remedies available to them for any breach or threatened breach, including, without limitation, the recovery of money damages, attorneys’ fees, and costs. The existence of any claim or cause of action by the Restricted Party, whether predicated on this Agreement or otherwise, shall not constitute a defense to the enforcement of the restrictive covenants contained herein, or preclude injunctive relief.
7. Assignment; Binding Agreement. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors and permitted assigns. The Restricted Party may not assign this Agreement to a third party. The Alliqua Entities may assign their rights, together with their obligations hereunder, to any Affiliates and/or subsidiary or any successor thereto or any purchaser of substantially all of their assets.
8. Reformation. The Restricted Party agrees that in the event any of the covenants contained herein shall be held by any court to be effective in any particular area or jurisdiction only if said covenant is modified to limit its duration or scope, then the court shall have such authority to so reform the covenant and the parties hereto shall consider such covenant(s) and/or other provisions to be amended and modified with respect to that particular area or jurisdiction so as to comply with the order of any such court and, as to all other jurisdictions, the covenants contained herein shall remain in full force and effect as originally written.
9. Partial Invalidity. In the event any court of competent jurisdiction holds any provision of this Agreement to be invalid or unenforceable, such invalid or unenforceable portion(s) shall be limited or excluded from this Agreement to the minimum extent required, and the remaining provisions shall not be affected or invalidated and shall remain in full force and effect.
10. Waiver. The rights and remedies of the parties to this Agreement are cumulative and without prejudice to any other rights or remedies under applicable law. Neither the failure nor any delay by any party in exercising any right, power or privilege under this Agreement will operate as a waiver of such right, power or privilege, and no single or partial exercise of any such right, power or privilege will preclude any other or further exercise of such right, power or privilege or the exercise of any other right, power or privilege. To the maximum extent permitted by applicable law, (a) no claim or right arising out of this Agreement can be discharged by one party, in whole or in part, by a waiver or renunciation of the claim or right unless in writing signed by the other party; (b) no waiver that may be given by a party will be applicable, except in the specific instance for which it is given; and (c) no notice or demand on one party will be deemed to be a waiver of any obligation of such party or of the right of the party giving such notice or demand to take further action without notice or demand as provided in this Agreement.
11. Entire Agreement. This Agreement, together with the Contribution and Merger Agreement, constitutes the entire agreement between the parties with respect to the subject matter hereof, and fully supersedes all prior and contemporaneous negotiations, promises, understandings, representations, writings, discussions and/or agreements between the parties, whether written or oral, pertaining to or concerning the subject matter of this Agreement. No oral statements or other prior written material not specifically incorporated into this Agreement shall be of any force or effect, and no changes in or additions to this Agreement shall be recognized, unless incorporated into this Agreement by written amendment, such amendment to become effective on the date stipulated in it. Any amendment to this Agreement must be signed by all parties to this Agreement.
12. Controlling Law and Venue. This Agreement shall be governed by and construed under the laws of the Commonwealth of Virginia. Venue of any litigation arising from this Agreement shall be in the United States District Court for the Eastern District of Virginia, or a state court of competent jurisdiction in Newport News, Virginia. The Restricted Party consents to personal jurisdiction of the United States District Court for the Eastern District of Virginia, or a state court of competent jurisdiction in Newport News, Virginia for any dispute relating to or arising out of this Agreement, and the Restricted Party agrees that the Restricted Party shall not challenge personal or subject matter jurisdiction in such courts.
13. Counterparts. This Agreement may be executed by the parties in multiple counterparts, whether or not all signatories appear on these counterparts (including via electronic signatures and exchange of PDF documents via email), each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
{Remainder of Page Intentionally Left Blank}
IN WITNESS WHEREOF, the parties have executed this Agreement, effective as of the Effective Date and subject to the consummation of the transactions contemplated by the Contribution and Merger Agreement.
THE RESTRICTED PARTY: Signature:
Printed Name:
Date:
THE COMPANIES: ALLIQUA HOLDINGS, INC
Signature:
Name:
Title:
Date:
ALLIQUA BIOMEDICAL, INC.
Signature:
Name:
Title:
Date:
Signature Page to Non-Competition and Non-Solicitation Agreement
| Entailment |
624_nda-11 | 624_nda-11_0 | Q: Receiving Party shall not reverse engineer any objects which embody Disclosing Party's Confidential Information.
Text: Exhibit (d)(3)
NON-DISCLOSURE AGREEMENT
This NON-DISCLOSURE AGREEMENT (“Agreement”) is being entered into as of March 19, 2018 between ARMO Biosciences, Inc., a Delaware corporation (“Seller”), and Eli Lilly and Company, an Indiana corporation (“Buyer” and with Seller referred to collectively as the “Parties” and individually as a “Party”).
In order to facilitate the consideration and negotiation of a possible negotiated transaction involving Buyer’s acquisition of all of the equity interests in Seller (a “Transaction”), each Party has either requested or may request access to certain non-public information regarding the other Party and the other Party’s subsidiaries. (Each Party, in its capacity as a provider of information, is referred to in this Agreement as the “Provider”; and each Party, in its capacity as a recipient of information, is referred to in this Agreement as the “Recipient”.) This Agreement sets forth the Parties’ obligations regarding the use and disclosure of such information and regarding various related matters.
The Parties, intending to be legally bound, acknowledge and agree as follows:
1. Limitations on Use and Disclosure of Confidential Information. Neither the Recipient nor any of the Recipient’s Representatives (as defined in Section 13 below) will, at any time, directly or indirectly:
(a) make use of any of the Provider’s Confidential Information (as defined in Section 12 below), except for the specific purpose of considering, evaluating and negotiating a Transaction between the Parties; or
(b) subject to Section 4 below, disclose any of the Provider’s Confidential Information to any other Person (as defined in Section 13 below).
The Recipient will be liable and responsible for any breach of this Agreement by any of its Representatives and for any other action or conduct on the part of any of its Representatives that is inconsistent with any provision of this Agreement. The Recipient will (at its own expense) take all reasonable actions necessary to restrain its Representatives from making any unauthorized use or disclosure of any of the Provider’s Confidential Information.
2. Provider Contact Person. Any request by the Recipient or any of its Representatives to review any of the Provider’s Confidential Information must be directed to the individual(s) identified opposite the name of the Provider on EXHIBIT A (the “Provider Contact Person”). Neither the Recipient nor any of the Recipient’s Representatives will contact or otherwise communicate with any other Representative of the Provider in connection with a Transaction without the prior written authorization of the Provider Contact Person.
3. No Representations by Provider. Neither the Provider nor any of the Provider’s Representatives will be under any obligation to make any particular Confidential Information of the Provider available to the Recipient or any of the Recipient’s Representatives or to supplement or update any Confidential Information of the Provider previously furnished.
Neither the Provider nor any of its Representatives has made or is making any representation or warranty, express or implied, as to the accuracy or completeness of any of the Provider’s Confidential Information, and neither the Provider nor any of its Representatives will have any liability to the Recipient or to any of the Recipient’s Representatives on any basis (including, without limitation, in contract, tort or under United States federal or state securities laws or otherwise) relating to or resulting from the use of any of the Provider’s Confidential Information or any inaccuracies or errors therein or omissions therefrom. Only those representations and warranties that are included in any final definitive written agreement that provides for the consummation of a Transaction between the Parties (a “Definitive Agreement”) will have legal effect.
4. Permitted Disclosures.
(a) Notwithstanding the limitations set forth in Section 1 above:
(i) the Recipient may disclose Confidential Information of the Provider if and to the extent that the Provider consents in writing to the Recipient’s disclosure thereof;
(ii) subject to Section 4(b) below, the Recipient may disclose Confidential Information of the Provider to any Representative of the Recipient, but only to the extent such Representative (A) needs to know such Confidential Information for the purpose of helping the Recipient evaluate or negotiate a Transaction between the Parties, and (B) has been provided with a copy of this Agreement and has agreed to abide and be bound by the provisions hereof or is otherwise bound by confidentiality obligations at least as restrictive as those contained in this Agreement; and
(iii) subject to Section 4(c) below, the Recipient may disclose Confidential Information of the Provider to the extent required by applicable law or governmental regulation or by valid legal process or stock exchange rule.
(b) If the Provider delivers to the Recipient a written notice stating that certain Confidential Information of the Provider may be disclosed only to specified Representatives of the Recipient (such notice, a “Permitted Representatives Notice”), then, notwithstanding anything to the contrary contained in Section 4(a)(ii) above, the Recipient shall not thereafter disclose or permit the disclosure of any of such Confidential Information to any other Representative of the Recipient (any such other Representative, an “Impermissible Representative”). For clarity, if the Recipient disclosed, or permitted the disclosure of, any such certain Confidential Information to an Impermissible Representative prior to the Recipient’s receipt of the Permitted Representatives Notice, such disclosure shall not be deemed a breach of this Agreement.
(c) If the Recipient or any of the Recipient’s Representatives is required by law or governmental regulation or by subpoena or other valid legal process to disclose any of the Provider’s Confidential Information to any Person, then the Recipient will promptly provide the Provider with written notice of the applicable law, regulation or process so that the Provider may seek a protective order or other appropriate remedy. The Recipient and its Representatives will cooperate with the Provider and the Provider’s Representatives (at the Provider’s sole expense) in any attempt by the Provider to obtain any such protective order or other remedy. If the Provider elects not to seek, or is unsuccessful in obtaining, any such protective order or other remedy in connection with any requirement that the Recipient disclose Confidential Information of the Provider, then the Recipient may disclose such Confidential Information to the extent legally required; provided however, that the Recipient and its Representatives will use their reasonable efforts to ensure that such Confidential Information is treated confidentially by each Person to whom it is disclosed.
5. Return of Confidential Information. Upon the Provider’s request, the Recipient and the Recipient’s Representatives will promptly deliver to the Provider any of the Provider’s Confidential Information (and all copies thereof) obtained or possessed by the Recipient or any of the Recipient’s Representatives; provided, however, that, in lieu of delivering such Confidential Information to the Provider, the Recipient may destroy such Confidential Information and deliver to the Provider a certificate confirming their destruction; provided further, that Recipient shall not be required to return or destroy copies of Confidential Information created pursuant to Recipient’s automatic archiving and back-up procedures. Notwithstanding the delivery to the Provider, the destruction by the Recipient or the automatic archiving by Recipient of Confidential Information of the Provider pursuant to this Section 5, the Recipient and its Representatives will continue to be bound by their confidentiality obligations and other obligations under this Agreement with respect to such Confidential Information.
6. Limitation on Soliciting Employees. During the 12 month period commencing on the date of this Agreement, each Party agrees that neither it nor any of its direct or indirect subsidiaries who is or becomes aware of the negotiation of a possible Transaction between the Parties shall solicit for employment any employee of the other Party (or any of such other Party’s direct or indirect subsidiaries) with whom it (or any of its direct or indirect subsidiaries) came into contact in connection with a possible Transaction; provided, however, that this Section 6 will not prevent either Party or its direct or indirect subsidiaries from making generalized searches for employees by causing to be placed any general advertisement or similar notices or engaging search firms, provided that that such searches are not targeted specifically at employees of the other Party or its direct or indirect subsidiaries.
7. Standstill Provision. During the 12 month period commencing on the date of this Agreement (the “Standstill Period”), neither Buyer nor any of Buyer’s subsidiaries or other Representatives on behalf of Buyer will, in any manner, directly or indirectly:
(a) make, effect, initiate, cause or participate in (i) any acquisition of beneficial ownership of any securities of Seller or any securities of any subsidiary of Seller, (ii) any acquisition of any assets of Seller or any assets of any subsidiary of Seller, (iii) any tender offer, exchange offer, merger, business combination, recapitalization, restructuring, liquidation, dissolution or extraordinary transaction involving Seller or any subsidiary of Seller or involving any securities or assets of Seller or any securities 4r assets of any subsidiary of Seller, or (iv) any “solicitation” of “proxies” (as those terms are used in the proxy rules of the Securities and Exchange Commission) or consents with respect to any securities of Seller or any subsidiary of Seller;
(b) form, join or participate in a “group” (as defined in the Securities Exchange Act of 1934 and the rules promulgated thereunder) with respect to the beneficial ownership of any securities of Seller or any subsidiary of Seller;
(c) act, alone or in concert with others, to seek to control or influence the management, board of directors or policies of Seller or any subsidiary of Seller;
(d) take any action that might require Seller to make a public announcement regarding any of the types of matters set forth in clause (a) of this Section 7;
(e) agree or offer to take, or encourage or propose (publicly or otherwise) the taking of, any action referred to in clause (a), (b), (c) or (d) of this Section 7;
(f) assist, induce or encourage any other Person to take any action of the type referred to in clause (a), (b), (c), (d) or (e) of this Section 7;
(g) enter into any discussions, negotiations, arrangement or agreement with any other Person relating to any of the foregoing; or
(h) request or propose that Seller or any of Seller’s Representatives amend, waive or consider the amendment or waiver of any provision set forth in this Section 7;
provided that Buyer shall not be prohibited from making or discussing any offers in a confidential, non-public manner that does not violate sub-clause (d) above regarding the Transaction directly to or with the management or the Board of Directors of Seller, or their designated Representatives (provided that the contents, subject and existence of any such communications shall constitute Confidential Information hereunder).
The standstill provisions of this Section 7 shall not apply to the Parties’ entry into or consummation of the transactions contemplated by a Definitive Agreement. The standstill provisions of this Section 7 shall not apply in the event that, without any violation of the standstill provision, (1) any third party unrelated to Buyer has made any public announcement of its intent to commence a tender offer or exchange offer for more than 50% of the capital stock of Seller, (ii) Seller publicly announces that it has entered into a definitive agreement for a transaction or series of transactions (whether structured as a tender offer, exchange offer, merger, business combination, sale of assets or other similar transaction) that, if consummated, would result in a sale of more than 50% of the capital stock of Seller or a sale of all or substantially all of the assets of Seller, or (iii) any third party unrelated to Buyer commences, or makes a public announcement of its intention to commence, a proxy contest or proxy solicitation with respect to the election of, or enters into an agreement, commitment or understanding with respect to the replacement or addition of, members of the Board of Directors of the Seller such that a majority of the Board of Directors of Seller would be designated by such third party. The standstill provisions of this Section 7 shall automatically become applicable again if the third party announces its intent not to proceed with the proposed transaction described in Section 7(a) above; provided, however, that the Standstill Period shall not be extended beyond its original term. The expiration of the Standstill Period will not terminate or otherwise affect any of the other provisions of this letter agreement.
8. No Obligation to Pursue Transaction. Unless the Parties enter into a Definitive Agreement, no agreement providing for a transaction involving either of the Parties will be deemed to exist between the Parties, and neither Party will be under any obligation to negotiate or enter into any such agreement or transaction with the other Party. Each Party recognizes that, except as expressly provided in any legally binding written agreement between the Parties that is executed on or after the date of this Agreement: (i) the other Party and its Representatives will be free to negotiate with, and to enter into any agreement or transaction with, any other interested party; and (ii) such Party will not have any rights or claims against the other Party or any of the other Party’s Representatives arising out of or relating to any transaction or proposed transaction involving the other Party.
9. No Waiver. No failure or delay by either Party or any of its Representatives in exercising any right, power or privilege under this Agreement will operate as a waiver thereof, and no single or partial exercise of any such right, power or privilege will preclude any other or future exercise thereof or the exercise of any other right, power or privilege under this Agreement. No provision of this Agreement can be waived or amended except by means of a written instrument that is validly executed on behalf of both of the Parties and that refers specifically to the particular provision or provisions being waived or amended.
10. Remedies. Each Party acknowledges that money damages would not be a sufficient remedy for any breach of this Agreement by such Party or by any of such Party’s Representatives and that the other Party would suffer irreparable harm as a result of any such breach. Accordingly, each Party will also be entitled to equitable relief, including injunction and specific performance, as a remedy for any breach or threatened breach of this Agreement by the other Party or any of the other Party’s Representatives (without the need for posting a bond or providing other security). The equitable remedies referred to above will not be deemed to be the exclusive remedies for a breach of this Agreement, but rather will be in addition to all other remedies available at law or in equity to the Parties.
11. Successors and Assigns; Applicable Law; Jurisdiction and Venue. This Agreement will be binding upon and inure to the benefit of each Party and its Representatives and their respective heirs, successors and assigns. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware (without giving effect to principles of conflicts of laws). Each Party: (a) irrevocably and unconditionally consents and submits to the jurisdiction of the state and federal courts located in the State of Delaware for purposes of any action, suit or proceeding arising out of or relating to this Agreement; (b) irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of or relating to this Agreement in any state or federal court located in the State of Delaware; and (c) irrevocably and unconditionally waives the right to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any action, suit or proceeding arising out of or relating to this Agreement that is brought in any state or federal court located in the State of Delaware has been brought in an inconvenient forum.
12. Confidential Information. For purposes of this Agreement, the Provider’s “Confidential Information” will be deemed to include only the following:
(a) any information (including any technology, know-how, patent application, test result, research study, business plan, budget, forecast or projection) relating directly or indirectly to the business of the Provider, any predecessor entity or any subsidiary or other affiliate of the Provider (whether prepared by the Provider or by any other Person and whether or not in written form) that is or that has, within the last thirty (30) days, been made available to the Recipient or any Representative of the Recipient by or on behalf of the Provider or any Representative of the Provider;
(b) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that is or has been prepared by or for the Recipient or any Representative of the Recipient and that contains, reflects, interprets or is based directly or indirectly upon any information of the type referred to in clause (a) of this Section 12;
(c) the existence and terms of this Agreement, and the fact that information of the type referred to in clause (a) of this Section 12 has been made available to the Recipient or any of its Representatives; and
(d) the fact that discussions or negotiations are or may be taking place with respect to a Transaction involving the Parties, and the proposed terms of any such transaction.
However, the Provider’s “Confidential Information” will not be deemed to include:
(i) any information that is or becomes generally available to the public other than as a direct or indirect result of the disclosure of any of such information by the Recipient or by any of the Recipient’s Representatives;
(ii) any information that was in the Recipient’s possession prior to the time it was first made available to the Recipient or any of the Recipient’s Representatives by or on behalf of the Provider or any of the Provider’s Representatives, provided that the source of such information was not and is not reasonably known to the Recipient to be bound by any contractual or other obligation of confidentiality to the Provider or to any other Person with respect to any of such information;
(iii) any information that becomes available to the Recipient on a non-confidential basis from a source other than the Provider or any of the Provider’s Representatives, provided that such source is not reasonably known to the Recipient to be bound by any contractual or other obligation of confidentiality to the Provider or to any other Person with respect to any of such information; or
(iv) any information that is developed by or on behalf of the Recipient independently of the disclosure of Confidential Information and without reference to or use of Confidential Information.
13. Miscellaneous.
(a) For purposes of this Agreement, a Party’s “Representatives” will be deemed to include each Person that is or becomes (i) a subsidiary or other affiliate of such Party, or (ii) an officer, director, employee, partner, attorney, advisor, accountant, agent or representative of such Party or of any of such Party’s subsidiaries or other affiliates.
(b) The term “Person,” as used in this Agreement, will be broadly interpreted to include any individual and any corporation, partnership, entity, group, tribunal or governmental authority.
(c) Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction.
(d) By making Confidential Information or other information available to the Recipient or the Recipient’s Representatives, the Provider is not, and shall not be deemed to be, granting (expressly or by implication) any license or other right under or with respect to any patent, trade secret, copyright, trademark or other proprietary or intellectual property right. Neither the Recipient nor the Recipient’s Representatives shall file any patent application containing any claim to any subject matter derived from the Confidential Information of the Provider.
(e) To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client privilege, work product doctrine or any other applicable privilege or doctrine concerning any Confidential Information or any pending, threatened or prospective action, suit, proceeding, investigation, arbitration or dispute, (i) Provider, or the applicable direct or indirect subsidiary of Provider, is not waiving and shall not be deemed to have waived or diminished its attorney-client privileges, work-product protections, or other applicable privileges or doctrines as a result of disclosing any Confidential Information (including Confidential Information related to pending or threatened litigation) and (ii) it is acknowledged and agreed that the Parties have a commonality of interest with respect to such Confidential Information or action, suit, proceeding, investigation, arbitration or dispute and that it is the Parties’ mutual desire, intention and understanding that the sharing of such materials and other information is not intended to, and shall not, affect the confidentiality of any of such materials or other information or waive or diminish the continued protection of any of such materials or other information under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine. Accordingly, all Confidential Information that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine shall remain entitled to protection thereunder and shall be entitled to protection under the joint defense doctrine, and the Parties agree to take all measures necessary to preserve, to the fullest extent possible, the applicability of all such privileges or doctrines.
(f) This Agreement constitutes the entire agreement between the Recipient and the Provider regarding the subject matter hereof and supersedes any prior agreement between the Recipient and the Provider regarding the subject matter hereof.
(g) This Agreement will terminate 12 months from the effective date of this Agreement, unless earlier terminated by either Party at any time upon 30 days written notice to the other Party. The termination of this Agreement shall not relieve the Recipient of the obligations hereunder with respect to Confidential Information of the Provider (which shall survive any such termination and continue for a period of three years from the effective date of this Agreement, provided that such obligations with respect to any trade secrets of the Provider will survive indefinitely), or relieve either party of its obligations under Section 6 of this Agreement or relieve Buyer of its obligations under Section 7 of this Agreement (which shall survive for the stated durations thereof), and the provisions of Sections 3, 5, 8, 9, 10, 11 and 13 shall remain in full force and effect and survive any termination of this Agreement.
(h) The Recipient agrees not to export, directly or indirectly, any U.S. source technical data acquired from the Provider or any products utilizing such data to countries outside the United States, which export may be in violation of the United States export laws or regulations.
(i) The Parties hereto confirm their agreement that this Agreement, as well as any amendment hereto and all other documents related hereto, including legal notices, shall be in the English language only.
[Signature Page Next]
ARMO BIOSCIENCES, INC. ELI LILLY AND COMPANY
By: /s/ Peter Van Vlasselaer By: /s/ Timothy C. Dolan
Title: CEO Title: V.P., Business Development
Address: 575 Chesapeake Dr. Address: Lilly Corporate Center
Redwood City, CA 94063 Indianapolis, IN
| Not mentioned |
624_nda-16 | 624_nda-16_0 | Q: Receiving Party shall destroy or return some Confidential Information upon the termination of Agreement.
Text: Exhibit (d)(3)
NON-DISCLOSURE AGREEMENT
This NON-DISCLOSURE AGREEMENT (“Agreement”) is being entered into as of March 19, 2018 between ARMO Biosciences, Inc., a Delaware corporation (“Seller”), and Eli Lilly and Company, an Indiana corporation (“Buyer” and with Seller referred to collectively as the “Parties” and individually as a “Party”).
In order to facilitate the consideration and negotiation of a possible negotiated transaction involving Buyer’s acquisition of all of the equity interests in Seller (a “Transaction”), each Party has either requested or may request access to certain non-public information regarding the other Party and the other Party’s subsidiaries. (Each Party, in its capacity as a provider of information, is referred to in this Agreement as the “Provider”; and each Party, in its capacity as a recipient of information, is referred to in this Agreement as the “Recipient”.) This Agreement sets forth the Parties’ obligations regarding the use and disclosure of such information and regarding various related matters.
The Parties, intending to be legally bound, acknowledge and agree as follows:
1. Limitations on Use and Disclosure of Confidential Information. Neither the Recipient nor any of the Recipient’s Representatives (as defined in Section 13 below) will, at any time, directly or indirectly:
(a) make use of any of the Provider’s Confidential Information (as defined in Section 12 below), except for the specific purpose of considering, evaluating and negotiating a Transaction between the Parties; or
(b) subject to Section 4 below, disclose any of the Provider’s Confidential Information to any other Person (as defined in Section 13 below).
The Recipient will be liable and responsible for any breach of this Agreement by any of its Representatives and for any other action or conduct on the part of any of its Representatives that is inconsistent with any provision of this Agreement. The Recipient will (at its own expense) take all reasonable actions necessary to restrain its Representatives from making any unauthorized use or disclosure of any of the Provider’s Confidential Information.
2. Provider Contact Person. Any request by the Recipient or any of its Representatives to review any of the Provider’s Confidential Information must be directed to the individual(s) identified opposite the name of the Provider on EXHIBIT A (the “Provider Contact Person”). Neither the Recipient nor any of the Recipient’s Representatives will contact or otherwise communicate with any other Representative of the Provider in connection with a Transaction without the prior written authorization of the Provider Contact Person.
3. No Representations by Provider. Neither the Provider nor any of the Provider’s Representatives will be under any obligation to make any particular Confidential Information of the Provider available to the Recipient or any of the Recipient’s Representatives or to supplement or update any Confidential Information of the Provider previously furnished.
Neither the Provider nor any of its Representatives has made or is making any representation or warranty, express or implied, as to the accuracy or completeness of any of the Provider’s Confidential Information, and neither the Provider nor any of its Representatives will have any liability to the Recipient or to any of the Recipient’s Representatives on any basis (including, without limitation, in contract, tort or under United States federal or state securities laws or otherwise) relating to or resulting from the use of any of the Provider’s Confidential Information or any inaccuracies or errors therein or omissions therefrom. Only those representations and warranties that are included in any final definitive written agreement that provides for the consummation of a Transaction between the Parties (a “Definitive Agreement”) will have legal effect.
4. Permitted Disclosures.
(a) Notwithstanding the limitations set forth in Section 1 above:
(i) the Recipient may disclose Confidential Information of the Provider if and to the extent that the Provider consents in writing to the Recipient’s disclosure thereof;
(ii) subject to Section 4(b) below, the Recipient may disclose Confidential Information of the Provider to any Representative of the Recipient, but only to the extent such Representative (A) needs to know such Confidential Information for the purpose of helping the Recipient evaluate or negotiate a Transaction between the Parties, and (B) has been provided with a copy of this Agreement and has agreed to abide and be bound by the provisions hereof or is otherwise bound by confidentiality obligations at least as restrictive as those contained in this Agreement; and
(iii) subject to Section 4(c) below, the Recipient may disclose Confidential Information of the Provider to the extent required by applicable law or governmental regulation or by valid legal process or stock exchange rule.
(b) If the Provider delivers to the Recipient a written notice stating that certain Confidential Information of the Provider may be disclosed only to specified Representatives of the Recipient (such notice, a “Permitted Representatives Notice”), then, notwithstanding anything to the contrary contained in Section 4(a)(ii) above, the Recipient shall not thereafter disclose or permit the disclosure of any of such Confidential Information to any other Representative of the Recipient (any such other Representative, an “Impermissible Representative”). For clarity, if the Recipient disclosed, or permitted the disclosure of, any such certain Confidential Information to an Impermissible Representative prior to the Recipient’s receipt of the Permitted Representatives Notice, such disclosure shall not be deemed a breach of this Agreement.
(c) If the Recipient or any of the Recipient’s Representatives is required by law or governmental regulation or by subpoena or other valid legal process to disclose any of the Provider’s Confidential Information to any Person, then the Recipient will promptly provide the Provider with written notice of the applicable law, regulation or process so that the Provider may seek a protective order or other appropriate remedy. The Recipient and its Representatives will cooperate with the Provider and the Provider’s Representatives (at the Provider’s sole expense) in any attempt by the Provider to obtain any such protective order or other remedy. If the Provider elects not to seek, or is unsuccessful in obtaining, any such protective order or other remedy in connection with any requirement that the Recipient disclose Confidential Information of the Provider, then the Recipient may disclose such Confidential Information to the extent legally required; provided however, that the Recipient and its Representatives will use their reasonable efforts to ensure that such Confidential Information is treated confidentially by each Person to whom it is disclosed.
5. Return of Confidential Information. Upon the Provider’s request, the Recipient and the Recipient’s Representatives will promptly deliver to the Provider any of the Provider’s Confidential Information (and all copies thereof) obtained or possessed by the Recipient or any of the Recipient’s Representatives; provided, however, that, in lieu of delivering such Confidential Information to the Provider, the Recipient may destroy such Confidential Information and deliver to the Provider a certificate confirming their destruction; provided further, that Recipient shall not be required to return or destroy copies of Confidential Information created pursuant to Recipient’s automatic archiving and back-up procedures. Notwithstanding the delivery to the Provider, the destruction by the Recipient or the automatic archiving by Recipient of Confidential Information of the Provider pursuant to this Section 5, the Recipient and its Representatives will continue to be bound by their confidentiality obligations and other obligations under this Agreement with respect to such Confidential Information.
6. Limitation on Soliciting Employees. During the 12 month period commencing on the date of this Agreement, each Party agrees that neither it nor any of its direct or indirect subsidiaries who is or becomes aware of the negotiation of a possible Transaction between the Parties shall solicit for employment any employee of the other Party (or any of such other Party’s direct or indirect subsidiaries) with whom it (or any of its direct or indirect subsidiaries) came into contact in connection with a possible Transaction; provided, however, that this Section 6 will not prevent either Party or its direct or indirect subsidiaries from making generalized searches for employees by causing to be placed any general advertisement or similar notices or engaging search firms, provided that that such searches are not targeted specifically at employees of the other Party or its direct or indirect subsidiaries.
7. Standstill Provision. During the 12 month period commencing on the date of this Agreement (the “Standstill Period”), neither Buyer nor any of Buyer’s subsidiaries or other Representatives on behalf of Buyer will, in any manner, directly or indirectly:
(a) make, effect, initiate, cause or participate in (i) any acquisition of beneficial ownership of any securities of Seller or any securities of any subsidiary of Seller, (ii) any acquisition of any assets of Seller or any assets of any subsidiary of Seller, (iii) any tender offer, exchange offer, merger, business combination, recapitalization, restructuring, liquidation, dissolution or extraordinary transaction involving Seller or any subsidiary of Seller or involving any securities or assets of Seller or any securities 4r assets of any subsidiary of Seller, or (iv) any “solicitation” of “proxies” (as those terms are used in the proxy rules of the Securities and Exchange Commission) or consents with respect to any securities of Seller or any subsidiary of Seller;
(b) form, join or participate in a “group” (as defined in the Securities Exchange Act of 1934 and the rules promulgated thereunder) with respect to the beneficial ownership of any securities of Seller or any subsidiary of Seller;
(c) act, alone or in concert with others, to seek to control or influence the management, board of directors or policies of Seller or any subsidiary of Seller;
(d) take any action that might require Seller to make a public announcement regarding any of the types of matters set forth in clause (a) of this Section 7;
(e) agree or offer to take, or encourage or propose (publicly or otherwise) the taking of, any action referred to in clause (a), (b), (c) or (d) of this Section 7;
(f) assist, induce or encourage any other Person to take any action of the type referred to in clause (a), (b), (c), (d) or (e) of this Section 7;
(g) enter into any discussions, negotiations, arrangement or agreement with any other Person relating to any of the foregoing; or
(h) request or propose that Seller or any of Seller’s Representatives amend, waive or consider the amendment or waiver of any provision set forth in this Section 7;
provided that Buyer shall not be prohibited from making or discussing any offers in a confidential, non-public manner that does not violate sub-clause (d) above regarding the Transaction directly to or with the management or the Board of Directors of Seller, or their designated Representatives (provided that the contents, subject and existence of any such communications shall constitute Confidential Information hereunder).
The standstill provisions of this Section 7 shall not apply to the Parties’ entry into or consummation of the transactions contemplated by a Definitive Agreement. The standstill provisions of this Section 7 shall not apply in the event that, without any violation of the standstill provision, (1) any third party unrelated to Buyer has made any public announcement of its intent to commence a tender offer or exchange offer for more than 50% of the capital stock of Seller, (ii) Seller publicly announces that it has entered into a definitive agreement for a transaction or series of transactions (whether structured as a tender offer, exchange offer, merger, business combination, sale of assets or other similar transaction) that, if consummated, would result in a sale of more than 50% of the capital stock of Seller or a sale of all or substantially all of the assets of Seller, or (iii) any third party unrelated to Buyer commences, or makes a public announcement of its intention to commence, a proxy contest or proxy solicitation with respect to the election of, or enters into an agreement, commitment or understanding with respect to the replacement or addition of, members of the Board of Directors of the Seller such that a majority of the Board of Directors of Seller would be designated by such third party. The standstill provisions of this Section 7 shall automatically become applicable again if the third party announces its intent not to proceed with the proposed transaction described in Section 7(a) above; provided, however, that the Standstill Period shall not be extended beyond its original term. The expiration of the Standstill Period will not terminate or otherwise affect any of the other provisions of this letter agreement.
8. No Obligation to Pursue Transaction. Unless the Parties enter into a Definitive Agreement, no agreement providing for a transaction involving either of the Parties will be deemed to exist between the Parties, and neither Party will be under any obligation to negotiate or enter into any such agreement or transaction with the other Party. Each Party recognizes that, except as expressly provided in any legally binding written agreement between the Parties that is executed on or after the date of this Agreement: (i) the other Party and its Representatives will be free to negotiate with, and to enter into any agreement or transaction with, any other interested party; and (ii) such Party will not have any rights or claims against the other Party or any of the other Party’s Representatives arising out of or relating to any transaction or proposed transaction involving the other Party.
9. No Waiver. No failure or delay by either Party or any of its Representatives in exercising any right, power or privilege under this Agreement will operate as a waiver thereof, and no single or partial exercise of any such right, power or privilege will preclude any other or future exercise thereof or the exercise of any other right, power or privilege under this Agreement. No provision of this Agreement can be waived or amended except by means of a written instrument that is validly executed on behalf of both of the Parties and that refers specifically to the particular provision or provisions being waived or amended.
10. Remedies. Each Party acknowledges that money damages would not be a sufficient remedy for any breach of this Agreement by such Party or by any of such Party’s Representatives and that the other Party would suffer irreparable harm as a result of any such breach. Accordingly, each Party will also be entitled to equitable relief, including injunction and specific performance, as a remedy for any breach or threatened breach of this Agreement by the other Party or any of the other Party’s Representatives (without the need for posting a bond or providing other security). The equitable remedies referred to above will not be deemed to be the exclusive remedies for a breach of this Agreement, but rather will be in addition to all other remedies available at law or in equity to the Parties.
11. Successors and Assigns; Applicable Law; Jurisdiction and Venue. This Agreement will be binding upon and inure to the benefit of each Party and its Representatives and their respective heirs, successors and assigns. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware (without giving effect to principles of conflicts of laws). Each Party: (a) irrevocably and unconditionally consents and submits to the jurisdiction of the state and federal courts located in the State of Delaware for purposes of any action, suit or proceeding arising out of or relating to this Agreement; (b) irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of or relating to this Agreement in any state or federal court located in the State of Delaware; and (c) irrevocably and unconditionally waives the right to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any action, suit or proceeding arising out of or relating to this Agreement that is brought in any state or federal court located in the State of Delaware has been brought in an inconvenient forum.
12. Confidential Information. For purposes of this Agreement, the Provider’s “Confidential Information” will be deemed to include only the following:
(a) any information (including any technology, know-how, patent application, test result, research study, business plan, budget, forecast or projection) relating directly or indirectly to the business of the Provider, any predecessor entity or any subsidiary or other affiliate of the Provider (whether prepared by the Provider or by any other Person and whether or not in written form) that is or that has, within the last thirty (30) days, been made available to the Recipient or any Representative of the Recipient by or on behalf of the Provider or any Representative of the Provider;
(b) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that is or has been prepared by or for the Recipient or any Representative of the Recipient and that contains, reflects, interprets or is based directly or indirectly upon any information of the type referred to in clause (a) of this Section 12;
(c) the existence and terms of this Agreement, and the fact that information of the type referred to in clause (a) of this Section 12 has been made available to the Recipient or any of its Representatives; and
(d) the fact that discussions or negotiations are or may be taking place with respect to a Transaction involving the Parties, and the proposed terms of any such transaction.
However, the Provider’s “Confidential Information” will not be deemed to include:
(i) any information that is or becomes generally available to the public other than as a direct or indirect result of the disclosure of any of such information by the Recipient or by any of the Recipient’s Representatives;
(ii) any information that was in the Recipient’s possession prior to the time it was first made available to the Recipient or any of the Recipient’s Representatives by or on behalf of the Provider or any of the Provider’s Representatives, provided that the source of such information was not and is not reasonably known to the Recipient to be bound by any contractual or other obligation of confidentiality to the Provider or to any other Person with respect to any of such information;
(iii) any information that becomes available to the Recipient on a non-confidential basis from a source other than the Provider or any of the Provider’s Representatives, provided that such source is not reasonably known to the Recipient to be bound by any contractual or other obligation of confidentiality to the Provider or to any other Person with respect to any of such information; or
(iv) any information that is developed by or on behalf of the Recipient independently of the disclosure of Confidential Information and without reference to or use of Confidential Information.
13. Miscellaneous.
(a) For purposes of this Agreement, a Party’s “Representatives” will be deemed to include each Person that is or becomes (i) a subsidiary or other affiliate of such Party, or (ii) an officer, director, employee, partner, attorney, advisor, accountant, agent or representative of such Party or of any of such Party’s subsidiaries or other affiliates.
(b) The term “Person,” as used in this Agreement, will be broadly interpreted to include any individual and any corporation, partnership, entity, group, tribunal or governmental authority.
(c) Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction.
(d) By making Confidential Information or other information available to the Recipient or the Recipient’s Representatives, the Provider is not, and shall not be deemed to be, granting (expressly or by implication) any license or other right under or with respect to any patent, trade secret, copyright, trademark or other proprietary or intellectual property right. Neither the Recipient nor the Recipient’s Representatives shall file any patent application containing any claim to any subject matter derived from the Confidential Information of the Provider.
(e) To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client privilege, work product doctrine or any other applicable privilege or doctrine concerning any Confidential Information or any pending, threatened or prospective action, suit, proceeding, investigation, arbitration or dispute, (i) Provider, or the applicable direct or indirect subsidiary of Provider, is not waiving and shall not be deemed to have waived or diminished its attorney-client privileges, work-product protections, or other applicable privileges or doctrines as a result of disclosing any Confidential Information (including Confidential Information related to pending or threatened litigation) and (ii) it is acknowledged and agreed that the Parties have a commonality of interest with respect to such Confidential Information or action, suit, proceeding, investigation, arbitration or dispute and that it is the Parties’ mutual desire, intention and understanding that the sharing of such materials and other information is not intended to, and shall not, affect the confidentiality of any of such materials or other information or waive or diminish the continued protection of any of such materials or other information under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine. Accordingly, all Confidential Information that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine shall remain entitled to protection thereunder and shall be entitled to protection under the joint defense doctrine, and the Parties agree to take all measures necessary to preserve, to the fullest extent possible, the applicability of all such privileges or doctrines.
(f) This Agreement constitutes the entire agreement between the Recipient and the Provider regarding the subject matter hereof and supersedes any prior agreement between the Recipient and the Provider regarding the subject matter hereof.
(g) This Agreement will terminate 12 months from the effective date of this Agreement, unless earlier terminated by either Party at any time upon 30 days written notice to the other Party. The termination of this Agreement shall not relieve the Recipient of the obligations hereunder with respect to Confidential Information of the Provider (which shall survive any such termination and continue for a period of three years from the effective date of this Agreement, provided that such obligations with respect to any trade secrets of the Provider will survive indefinitely), or relieve either party of its obligations under Section 6 of this Agreement or relieve Buyer of its obligations under Section 7 of this Agreement (which shall survive for the stated durations thereof), and the provisions of Sections 3, 5, 8, 9, 10, 11 and 13 shall remain in full force and effect and survive any termination of this Agreement.
(h) The Recipient agrees not to export, directly or indirectly, any U.S. source technical data acquired from the Provider or any products utilizing such data to countries outside the United States, which export may be in violation of the United States export laws or regulations.
(i) The Parties hereto confirm their agreement that this Agreement, as well as any amendment hereto and all other documents related hereto, including legal notices, shall be in the English language only.
[Signature Page Next]
ARMO BIOSCIENCES, INC. ELI LILLY AND COMPANY
By: /s/ Peter Van Vlasselaer By: /s/ Timothy C. Dolan
Title: CEO Title: V.P., Business Development
Address: 575 Chesapeake Dr. Address: Lilly Corporate Center
Redwood City, CA 94063 Indianapolis, IN
| Not mentioned |
624_nda-15 | 624_nda-15_0 | Q: Agreement shall not grant Receiving Party any right to Confidential Information.
Text: Exhibit (d)(3)
NON-DISCLOSURE AGREEMENT
This NON-DISCLOSURE AGREEMENT (“Agreement”) is being entered into as of March 19, 2018 between ARMO Biosciences, Inc., a Delaware corporation (“Seller”), and Eli Lilly and Company, an Indiana corporation (“Buyer” and with Seller referred to collectively as the “Parties” and individually as a “Party”).
In order to facilitate the consideration and negotiation of a possible negotiated transaction involving Buyer’s acquisition of all of the equity interests in Seller (a “Transaction”), each Party has either requested or may request access to certain non-public information regarding the other Party and the other Party’s subsidiaries. (Each Party, in its capacity as a provider of information, is referred to in this Agreement as the “Provider”; and each Party, in its capacity as a recipient of information, is referred to in this Agreement as the “Recipient”.) This Agreement sets forth the Parties’ obligations regarding the use and disclosure of such information and regarding various related matters.
The Parties, intending to be legally bound, acknowledge and agree as follows:
1. Limitations on Use and Disclosure of Confidential Information. Neither the Recipient nor any of the Recipient’s Representatives (as defined in Section 13 below) will, at any time, directly or indirectly:
(a) make use of any of the Provider’s Confidential Information (as defined in Section 12 below), except for the specific purpose of considering, evaluating and negotiating a Transaction between the Parties; or
(b) subject to Section 4 below, disclose any of the Provider’s Confidential Information to any other Person (as defined in Section 13 below).
The Recipient will be liable and responsible for any breach of this Agreement by any of its Representatives and for any other action or conduct on the part of any of its Representatives that is inconsistent with any provision of this Agreement. The Recipient will (at its own expense) take all reasonable actions necessary to restrain its Representatives from making any unauthorized use or disclosure of any of the Provider’s Confidential Information.
2. Provider Contact Person. Any request by the Recipient or any of its Representatives to review any of the Provider’s Confidential Information must be directed to the individual(s) identified opposite the name of the Provider on EXHIBIT A (the “Provider Contact Person”). Neither the Recipient nor any of the Recipient’s Representatives will contact or otherwise communicate with any other Representative of the Provider in connection with a Transaction without the prior written authorization of the Provider Contact Person.
3. No Representations by Provider. Neither the Provider nor any of the Provider’s Representatives will be under any obligation to make any particular Confidential Information of the Provider available to the Recipient or any of the Recipient’s Representatives or to supplement or update any Confidential Information of the Provider previously furnished.
Neither the Provider nor any of its Representatives has made or is making any representation or warranty, express or implied, as to the accuracy or completeness of any of the Provider’s Confidential Information, and neither the Provider nor any of its Representatives will have any liability to the Recipient or to any of the Recipient’s Representatives on any basis (including, without limitation, in contract, tort or under United States federal or state securities laws or otherwise) relating to or resulting from the use of any of the Provider’s Confidential Information or any inaccuracies or errors therein or omissions therefrom. Only those representations and warranties that are included in any final definitive written agreement that provides for the consummation of a Transaction between the Parties (a “Definitive Agreement”) will have legal effect.
4. Permitted Disclosures.
(a) Notwithstanding the limitations set forth in Section 1 above:
(i) the Recipient may disclose Confidential Information of the Provider if and to the extent that the Provider consents in writing to the Recipient’s disclosure thereof;
(ii) subject to Section 4(b) below, the Recipient may disclose Confidential Information of the Provider to any Representative of the Recipient, but only to the extent such Representative (A) needs to know such Confidential Information for the purpose of helping the Recipient evaluate or negotiate a Transaction between the Parties, and (B) has been provided with a copy of this Agreement and has agreed to abide and be bound by the provisions hereof or is otherwise bound by confidentiality obligations at least as restrictive as those contained in this Agreement; and
(iii) subject to Section 4(c) below, the Recipient may disclose Confidential Information of the Provider to the extent required by applicable law or governmental regulation or by valid legal process or stock exchange rule.
(b) If the Provider delivers to the Recipient a written notice stating that certain Confidential Information of the Provider may be disclosed only to specified Representatives of the Recipient (such notice, a “Permitted Representatives Notice”), then, notwithstanding anything to the contrary contained in Section 4(a)(ii) above, the Recipient shall not thereafter disclose or permit the disclosure of any of such Confidential Information to any other Representative of the Recipient (any such other Representative, an “Impermissible Representative”). For clarity, if the Recipient disclosed, or permitted the disclosure of, any such certain Confidential Information to an Impermissible Representative prior to the Recipient’s receipt of the Permitted Representatives Notice, such disclosure shall not be deemed a breach of this Agreement.
(c) If the Recipient or any of the Recipient’s Representatives is required by law or governmental regulation or by subpoena or other valid legal process to disclose any of the Provider’s Confidential Information to any Person, then the Recipient will promptly provide the Provider with written notice of the applicable law, regulation or process so that the Provider may seek a protective order or other appropriate remedy. The Recipient and its Representatives will cooperate with the Provider and the Provider’s Representatives (at the Provider’s sole expense) in any attempt by the Provider to obtain any such protective order or other remedy. If the Provider elects not to seek, or is unsuccessful in obtaining, any such protective order or other remedy in connection with any requirement that the Recipient disclose Confidential Information of the Provider, then the Recipient may disclose such Confidential Information to the extent legally required; provided however, that the Recipient and its Representatives will use their reasonable efforts to ensure that such Confidential Information is treated confidentially by each Person to whom it is disclosed.
5. Return of Confidential Information. Upon the Provider’s request, the Recipient and the Recipient’s Representatives will promptly deliver to the Provider any of the Provider’s Confidential Information (and all copies thereof) obtained or possessed by the Recipient or any of the Recipient’s Representatives; provided, however, that, in lieu of delivering such Confidential Information to the Provider, the Recipient may destroy such Confidential Information and deliver to the Provider a certificate confirming their destruction; provided further, that Recipient shall not be required to return or destroy copies of Confidential Information created pursuant to Recipient’s automatic archiving and back-up procedures. Notwithstanding the delivery to the Provider, the destruction by the Recipient or the automatic archiving by Recipient of Confidential Information of the Provider pursuant to this Section 5, the Recipient and its Representatives will continue to be bound by their confidentiality obligations and other obligations under this Agreement with respect to such Confidential Information.
6. Limitation on Soliciting Employees. During the 12 month period commencing on the date of this Agreement, each Party agrees that neither it nor any of its direct or indirect subsidiaries who is or becomes aware of the negotiation of a possible Transaction between the Parties shall solicit for employment any employee of the other Party (or any of such other Party’s direct or indirect subsidiaries) with whom it (or any of its direct or indirect subsidiaries) came into contact in connection with a possible Transaction; provided, however, that this Section 6 will not prevent either Party or its direct or indirect subsidiaries from making generalized searches for employees by causing to be placed any general advertisement or similar notices or engaging search firms, provided that that such searches are not targeted specifically at employees of the other Party or its direct or indirect subsidiaries.
7. Standstill Provision. During the 12 month period commencing on the date of this Agreement (the “Standstill Period”), neither Buyer nor any of Buyer’s subsidiaries or other Representatives on behalf of Buyer will, in any manner, directly or indirectly:
(a) make, effect, initiate, cause or participate in (i) any acquisition of beneficial ownership of any securities of Seller or any securities of any subsidiary of Seller, (ii) any acquisition of any assets of Seller or any assets of any subsidiary of Seller, (iii) any tender offer, exchange offer, merger, business combination, recapitalization, restructuring, liquidation, dissolution or extraordinary transaction involving Seller or any subsidiary of Seller or involving any securities or assets of Seller or any securities 4r assets of any subsidiary of Seller, or (iv) any “solicitation” of “proxies” (as those terms are used in the proxy rules of the Securities and Exchange Commission) or consents with respect to any securities of Seller or any subsidiary of Seller;
(b) form, join or participate in a “group” (as defined in the Securities Exchange Act of 1934 and the rules promulgated thereunder) with respect to the beneficial ownership of any securities of Seller or any subsidiary of Seller;
(c) act, alone or in concert with others, to seek to control or influence the management, board of directors or policies of Seller or any subsidiary of Seller;
(d) take any action that might require Seller to make a public announcement regarding any of the types of matters set forth in clause (a) of this Section 7;
(e) agree or offer to take, or encourage or propose (publicly or otherwise) the taking of, any action referred to in clause (a), (b), (c) or (d) of this Section 7;
(f) assist, induce or encourage any other Person to take any action of the type referred to in clause (a), (b), (c), (d) or (e) of this Section 7;
(g) enter into any discussions, negotiations, arrangement or agreement with any other Person relating to any of the foregoing; or
(h) request or propose that Seller or any of Seller’s Representatives amend, waive or consider the amendment or waiver of any provision set forth in this Section 7;
provided that Buyer shall not be prohibited from making or discussing any offers in a confidential, non-public manner that does not violate sub-clause (d) above regarding the Transaction directly to or with the management or the Board of Directors of Seller, or their designated Representatives (provided that the contents, subject and existence of any such communications shall constitute Confidential Information hereunder).
The standstill provisions of this Section 7 shall not apply to the Parties’ entry into or consummation of the transactions contemplated by a Definitive Agreement. The standstill provisions of this Section 7 shall not apply in the event that, without any violation of the standstill provision, (1) any third party unrelated to Buyer has made any public announcement of its intent to commence a tender offer or exchange offer for more than 50% of the capital stock of Seller, (ii) Seller publicly announces that it has entered into a definitive agreement for a transaction or series of transactions (whether structured as a tender offer, exchange offer, merger, business combination, sale of assets or other similar transaction) that, if consummated, would result in a sale of more than 50% of the capital stock of Seller or a sale of all or substantially all of the assets of Seller, or (iii) any third party unrelated to Buyer commences, or makes a public announcement of its intention to commence, a proxy contest or proxy solicitation with respect to the election of, or enters into an agreement, commitment or understanding with respect to the replacement or addition of, members of the Board of Directors of the Seller such that a majority of the Board of Directors of Seller would be designated by such third party. The standstill provisions of this Section 7 shall automatically become applicable again if the third party announces its intent not to proceed with the proposed transaction described in Section 7(a) above; provided, however, that the Standstill Period shall not be extended beyond its original term. The expiration of the Standstill Period will not terminate or otherwise affect any of the other provisions of this letter agreement.
8. No Obligation to Pursue Transaction. Unless the Parties enter into a Definitive Agreement, no agreement providing for a transaction involving either of the Parties will be deemed to exist between the Parties, and neither Party will be under any obligation to negotiate or enter into any such agreement or transaction with the other Party. Each Party recognizes that, except as expressly provided in any legally binding written agreement between the Parties that is executed on or after the date of this Agreement: (i) the other Party and its Representatives will be free to negotiate with, and to enter into any agreement or transaction with, any other interested party; and (ii) such Party will not have any rights or claims against the other Party or any of the other Party’s Representatives arising out of or relating to any transaction or proposed transaction involving the other Party.
9. No Waiver. No failure or delay by either Party or any of its Representatives in exercising any right, power or privilege under this Agreement will operate as a waiver thereof, and no single or partial exercise of any such right, power or privilege will preclude any other or future exercise thereof or the exercise of any other right, power or privilege under this Agreement. No provision of this Agreement can be waived or amended except by means of a written instrument that is validly executed on behalf of both of the Parties and that refers specifically to the particular provision or provisions being waived or amended.
10. Remedies. Each Party acknowledges that money damages would not be a sufficient remedy for any breach of this Agreement by such Party or by any of such Party’s Representatives and that the other Party would suffer irreparable harm as a result of any such breach. Accordingly, each Party will also be entitled to equitable relief, including injunction and specific performance, as a remedy for any breach or threatened breach of this Agreement by the other Party or any of the other Party’s Representatives (without the need for posting a bond or providing other security). The equitable remedies referred to above will not be deemed to be the exclusive remedies for a breach of this Agreement, but rather will be in addition to all other remedies available at law or in equity to the Parties.
11. Successors and Assigns; Applicable Law; Jurisdiction and Venue. This Agreement will be binding upon and inure to the benefit of each Party and its Representatives and their respective heirs, successors and assigns. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware (without giving effect to principles of conflicts of laws). Each Party: (a) irrevocably and unconditionally consents and submits to the jurisdiction of the state and federal courts located in the State of Delaware for purposes of any action, suit or proceeding arising out of or relating to this Agreement; (b) irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of or relating to this Agreement in any state or federal court located in the State of Delaware; and (c) irrevocably and unconditionally waives the right to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any action, suit or proceeding arising out of or relating to this Agreement that is brought in any state or federal court located in the State of Delaware has been brought in an inconvenient forum.
12. Confidential Information. For purposes of this Agreement, the Provider’s “Confidential Information” will be deemed to include only the following:
(a) any information (including any technology, know-how, patent application, test result, research study, business plan, budget, forecast or projection) relating directly or indirectly to the business of the Provider, any predecessor entity or any subsidiary or other affiliate of the Provider (whether prepared by the Provider or by any other Person and whether or not in written form) that is or that has, within the last thirty (30) days, been made available to the Recipient or any Representative of the Recipient by or on behalf of the Provider or any Representative of the Provider;
(b) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that is or has been prepared by or for the Recipient or any Representative of the Recipient and that contains, reflects, interprets or is based directly or indirectly upon any information of the type referred to in clause (a) of this Section 12;
(c) the existence and terms of this Agreement, and the fact that information of the type referred to in clause (a) of this Section 12 has been made available to the Recipient or any of its Representatives; and
(d) the fact that discussions or negotiations are or may be taking place with respect to a Transaction involving the Parties, and the proposed terms of any such transaction.
However, the Provider’s “Confidential Information” will not be deemed to include:
(i) any information that is or becomes generally available to the public other than as a direct or indirect result of the disclosure of any of such information by the Recipient or by any of the Recipient’s Representatives;
(ii) any information that was in the Recipient’s possession prior to the time it was first made available to the Recipient or any of the Recipient’s Representatives by or on behalf of the Provider or any of the Provider’s Representatives, provided that the source of such information was not and is not reasonably known to the Recipient to be bound by any contractual or other obligation of confidentiality to the Provider or to any other Person with respect to any of such information;
(iii) any information that becomes available to the Recipient on a non-confidential basis from a source other than the Provider or any of the Provider’s Representatives, provided that such source is not reasonably known to the Recipient to be bound by any contractual or other obligation of confidentiality to the Provider or to any other Person with respect to any of such information; or
(iv) any information that is developed by or on behalf of the Recipient independently of the disclosure of Confidential Information and without reference to or use of Confidential Information.
13. Miscellaneous.
(a) For purposes of this Agreement, a Party’s “Representatives” will be deemed to include each Person that is or becomes (i) a subsidiary or other affiliate of such Party, or (ii) an officer, director, employee, partner, attorney, advisor, accountant, agent or representative of such Party or of any of such Party’s subsidiaries or other affiliates.
(b) The term “Person,” as used in this Agreement, will be broadly interpreted to include any individual and any corporation, partnership, entity, group, tribunal or governmental authority.
(c) Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction.
(d) By making Confidential Information or other information available to the Recipient or the Recipient’s Representatives, the Provider is not, and shall not be deemed to be, granting (expressly or by implication) any license or other right under or with respect to any patent, trade secret, copyright, trademark or other proprietary or intellectual property right. Neither the Recipient nor the Recipient’s Representatives shall file any patent application containing any claim to any subject matter derived from the Confidential Information of the Provider.
(e) To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client privilege, work product doctrine or any other applicable privilege or doctrine concerning any Confidential Information or any pending, threatened or prospective action, suit, proceeding, investigation, arbitration or dispute, (i) Provider, or the applicable direct or indirect subsidiary of Provider, is not waiving and shall not be deemed to have waived or diminished its attorney-client privileges, work-product protections, or other applicable privileges or doctrines as a result of disclosing any Confidential Information (including Confidential Information related to pending or threatened litigation) and (ii) it is acknowledged and agreed that the Parties have a commonality of interest with respect to such Confidential Information or action, suit, proceeding, investigation, arbitration or dispute and that it is the Parties’ mutual desire, intention and understanding that the sharing of such materials and other information is not intended to, and shall not, affect the confidentiality of any of such materials or other information or waive or diminish the continued protection of any of such materials or other information under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine. Accordingly, all Confidential Information that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine shall remain entitled to protection thereunder and shall be entitled to protection under the joint defense doctrine, and the Parties agree to take all measures necessary to preserve, to the fullest extent possible, the applicability of all such privileges or doctrines.
(f) This Agreement constitutes the entire agreement between the Recipient and the Provider regarding the subject matter hereof and supersedes any prior agreement between the Recipient and the Provider regarding the subject matter hereof.
(g) This Agreement will terminate 12 months from the effective date of this Agreement, unless earlier terminated by either Party at any time upon 30 days written notice to the other Party. The termination of this Agreement shall not relieve the Recipient of the obligations hereunder with respect to Confidential Information of the Provider (which shall survive any such termination and continue for a period of three years from the effective date of this Agreement, provided that such obligations with respect to any trade secrets of the Provider will survive indefinitely), or relieve either party of its obligations under Section 6 of this Agreement or relieve Buyer of its obligations under Section 7 of this Agreement (which shall survive for the stated durations thereof), and the provisions of Sections 3, 5, 8, 9, 10, 11 and 13 shall remain in full force and effect and survive any termination of this Agreement.
(h) The Recipient agrees not to export, directly or indirectly, any U.S. source technical data acquired from the Provider or any products utilizing such data to countries outside the United States, which export may be in violation of the United States export laws or regulations.
(i) The Parties hereto confirm their agreement that this Agreement, as well as any amendment hereto and all other documents related hereto, including legal notices, shall be in the English language only.
[Signature Page Next]
ARMO BIOSCIENCES, INC. ELI LILLY AND COMPANY
By: /s/ Peter Van Vlasselaer By: /s/ Timothy C. Dolan
Title: CEO Title: V.P., Business Development
Address: 575 Chesapeake Dr. Address: Lilly Corporate Center
Redwood City, CA 94063 Indianapolis, IN
| Entailment |
624_nda-10 | 624_nda-10_0 | Q: Receiving Party shall not disclose the fact that Agreement was agreed or negotiated.
Text: Exhibit (d)(3)
NON-DISCLOSURE AGREEMENT
This NON-DISCLOSURE AGREEMENT (“Agreement”) is being entered into as of March 19, 2018 between ARMO Biosciences, Inc., a Delaware corporation (“Seller”), and Eli Lilly and Company, an Indiana corporation (“Buyer” and with Seller referred to collectively as the “Parties” and individually as a “Party”).
In order to facilitate the consideration and negotiation of a possible negotiated transaction involving Buyer’s acquisition of all of the equity interests in Seller (a “Transaction”), each Party has either requested or may request access to certain non-public information regarding the other Party and the other Party’s subsidiaries. (Each Party, in its capacity as a provider of information, is referred to in this Agreement as the “Provider”; and each Party, in its capacity as a recipient of information, is referred to in this Agreement as the “Recipient”.) This Agreement sets forth the Parties’ obligations regarding the use and disclosure of such information and regarding various related matters.
The Parties, intending to be legally bound, acknowledge and agree as follows:
1. Limitations on Use and Disclosure of Confidential Information. Neither the Recipient nor any of the Recipient’s Representatives (as defined in Section 13 below) will, at any time, directly or indirectly:
(a) make use of any of the Provider’s Confidential Information (as defined in Section 12 below), except for the specific purpose of considering, evaluating and negotiating a Transaction between the Parties; or
(b) subject to Section 4 below, disclose any of the Provider’s Confidential Information to any other Person (as defined in Section 13 below).
The Recipient will be liable and responsible for any breach of this Agreement by any of its Representatives and for any other action or conduct on the part of any of its Representatives that is inconsistent with any provision of this Agreement. The Recipient will (at its own expense) take all reasonable actions necessary to restrain its Representatives from making any unauthorized use or disclosure of any of the Provider’s Confidential Information.
2. Provider Contact Person. Any request by the Recipient or any of its Representatives to review any of the Provider’s Confidential Information must be directed to the individual(s) identified opposite the name of the Provider on EXHIBIT A (the “Provider Contact Person”). Neither the Recipient nor any of the Recipient’s Representatives will contact or otherwise communicate with any other Representative of the Provider in connection with a Transaction without the prior written authorization of the Provider Contact Person.
3. No Representations by Provider. Neither the Provider nor any of the Provider’s Representatives will be under any obligation to make any particular Confidential Information of the Provider available to the Recipient or any of the Recipient’s Representatives or to supplement or update any Confidential Information of the Provider previously furnished.
Neither the Provider nor any of its Representatives has made or is making any representation or warranty, express or implied, as to the accuracy or completeness of any of the Provider’s Confidential Information, and neither the Provider nor any of its Representatives will have any liability to the Recipient or to any of the Recipient’s Representatives on any basis (including, without limitation, in contract, tort or under United States federal or state securities laws or otherwise) relating to or resulting from the use of any of the Provider’s Confidential Information or any inaccuracies or errors therein or omissions therefrom. Only those representations and warranties that are included in any final definitive written agreement that provides for the consummation of a Transaction between the Parties (a “Definitive Agreement”) will have legal effect.
4. Permitted Disclosures.
(a) Notwithstanding the limitations set forth in Section 1 above:
(i) the Recipient may disclose Confidential Information of the Provider if and to the extent that the Provider consents in writing to the Recipient’s disclosure thereof;
(ii) subject to Section 4(b) below, the Recipient may disclose Confidential Information of the Provider to any Representative of the Recipient, but only to the extent such Representative (A) needs to know such Confidential Information for the purpose of helping the Recipient evaluate or negotiate a Transaction between the Parties, and (B) has been provided with a copy of this Agreement and has agreed to abide and be bound by the provisions hereof or is otherwise bound by confidentiality obligations at least as restrictive as those contained in this Agreement; and
(iii) subject to Section 4(c) below, the Recipient may disclose Confidential Information of the Provider to the extent required by applicable law or governmental regulation or by valid legal process or stock exchange rule.
(b) If the Provider delivers to the Recipient a written notice stating that certain Confidential Information of the Provider may be disclosed only to specified Representatives of the Recipient (such notice, a “Permitted Representatives Notice”), then, notwithstanding anything to the contrary contained in Section 4(a)(ii) above, the Recipient shall not thereafter disclose or permit the disclosure of any of such Confidential Information to any other Representative of the Recipient (any such other Representative, an “Impermissible Representative”). For clarity, if the Recipient disclosed, or permitted the disclosure of, any such certain Confidential Information to an Impermissible Representative prior to the Recipient’s receipt of the Permitted Representatives Notice, such disclosure shall not be deemed a breach of this Agreement.
(c) If the Recipient or any of the Recipient’s Representatives is required by law or governmental regulation or by subpoena or other valid legal process to disclose any of the Provider’s Confidential Information to any Person, then the Recipient will promptly provide the Provider with written notice of the applicable law, regulation or process so that the Provider may seek a protective order or other appropriate remedy. The Recipient and its Representatives will cooperate with the Provider and the Provider’s Representatives (at the Provider’s sole expense) in any attempt by the Provider to obtain any such protective order or other remedy. If the Provider elects not to seek, or is unsuccessful in obtaining, any such protective order or other remedy in connection with any requirement that the Recipient disclose Confidential Information of the Provider, then the Recipient may disclose such Confidential Information to the extent legally required; provided however, that the Recipient and its Representatives will use their reasonable efforts to ensure that such Confidential Information is treated confidentially by each Person to whom it is disclosed.
5. Return of Confidential Information. Upon the Provider’s request, the Recipient and the Recipient’s Representatives will promptly deliver to the Provider any of the Provider’s Confidential Information (and all copies thereof) obtained or possessed by the Recipient or any of the Recipient’s Representatives; provided, however, that, in lieu of delivering such Confidential Information to the Provider, the Recipient may destroy such Confidential Information and deliver to the Provider a certificate confirming their destruction; provided further, that Recipient shall not be required to return or destroy copies of Confidential Information created pursuant to Recipient’s automatic archiving and back-up procedures. Notwithstanding the delivery to the Provider, the destruction by the Recipient or the automatic archiving by Recipient of Confidential Information of the Provider pursuant to this Section 5, the Recipient and its Representatives will continue to be bound by their confidentiality obligations and other obligations under this Agreement with respect to such Confidential Information.
6. Limitation on Soliciting Employees. During the 12 month period commencing on the date of this Agreement, each Party agrees that neither it nor any of its direct or indirect subsidiaries who is or becomes aware of the negotiation of a possible Transaction between the Parties shall solicit for employment any employee of the other Party (or any of such other Party’s direct or indirect subsidiaries) with whom it (or any of its direct or indirect subsidiaries) came into contact in connection with a possible Transaction; provided, however, that this Section 6 will not prevent either Party or its direct or indirect subsidiaries from making generalized searches for employees by causing to be placed any general advertisement or similar notices or engaging search firms, provided that that such searches are not targeted specifically at employees of the other Party or its direct or indirect subsidiaries.
7. Standstill Provision. During the 12 month period commencing on the date of this Agreement (the “Standstill Period”), neither Buyer nor any of Buyer’s subsidiaries or other Representatives on behalf of Buyer will, in any manner, directly or indirectly:
(a) make, effect, initiate, cause or participate in (i) any acquisition of beneficial ownership of any securities of Seller or any securities of any subsidiary of Seller, (ii) any acquisition of any assets of Seller or any assets of any subsidiary of Seller, (iii) any tender offer, exchange offer, merger, business combination, recapitalization, restructuring, liquidation, dissolution or extraordinary transaction involving Seller or any subsidiary of Seller or involving any securities or assets of Seller or any securities 4r assets of any subsidiary of Seller, or (iv) any “solicitation” of “proxies” (as those terms are used in the proxy rules of the Securities and Exchange Commission) or consents with respect to any securities of Seller or any subsidiary of Seller;
(b) form, join or participate in a “group” (as defined in the Securities Exchange Act of 1934 and the rules promulgated thereunder) with respect to the beneficial ownership of any securities of Seller or any subsidiary of Seller;
(c) act, alone or in concert with others, to seek to control or influence the management, board of directors or policies of Seller or any subsidiary of Seller;
(d) take any action that might require Seller to make a public announcement regarding any of the types of matters set forth in clause (a) of this Section 7;
(e) agree or offer to take, or encourage or propose (publicly or otherwise) the taking of, any action referred to in clause (a), (b), (c) or (d) of this Section 7;
(f) assist, induce or encourage any other Person to take any action of the type referred to in clause (a), (b), (c), (d) or (e) of this Section 7;
(g) enter into any discussions, negotiations, arrangement or agreement with any other Person relating to any of the foregoing; or
(h) request or propose that Seller or any of Seller’s Representatives amend, waive or consider the amendment or waiver of any provision set forth in this Section 7;
provided that Buyer shall not be prohibited from making or discussing any offers in a confidential, non-public manner that does not violate sub-clause (d) above regarding the Transaction directly to or with the management or the Board of Directors of Seller, or their designated Representatives (provided that the contents, subject and existence of any such communications shall constitute Confidential Information hereunder).
The standstill provisions of this Section 7 shall not apply to the Parties’ entry into or consummation of the transactions contemplated by a Definitive Agreement. The standstill provisions of this Section 7 shall not apply in the event that, without any violation of the standstill provision, (1) any third party unrelated to Buyer has made any public announcement of its intent to commence a tender offer or exchange offer for more than 50% of the capital stock of Seller, (ii) Seller publicly announces that it has entered into a definitive agreement for a transaction or series of transactions (whether structured as a tender offer, exchange offer, merger, business combination, sale of assets or other similar transaction) that, if consummated, would result in a sale of more than 50% of the capital stock of Seller or a sale of all or substantially all of the assets of Seller, or (iii) any third party unrelated to Buyer commences, or makes a public announcement of its intention to commence, a proxy contest or proxy solicitation with respect to the election of, or enters into an agreement, commitment or understanding with respect to the replacement or addition of, members of the Board of Directors of the Seller such that a majority of the Board of Directors of Seller would be designated by such third party. The standstill provisions of this Section 7 shall automatically become applicable again if the third party announces its intent not to proceed with the proposed transaction described in Section 7(a) above; provided, however, that the Standstill Period shall not be extended beyond its original term. The expiration of the Standstill Period will not terminate or otherwise affect any of the other provisions of this letter agreement.
8. No Obligation to Pursue Transaction. Unless the Parties enter into a Definitive Agreement, no agreement providing for a transaction involving either of the Parties will be deemed to exist between the Parties, and neither Party will be under any obligation to negotiate or enter into any such agreement or transaction with the other Party. Each Party recognizes that, except as expressly provided in any legally binding written agreement between the Parties that is executed on or after the date of this Agreement: (i) the other Party and its Representatives will be free to negotiate with, and to enter into any agreement or transaction with, any other interested party; and (ii) such Party will not have any rights or claims against the other Party or any of the other Party’s Representatives arising out of or relating to any transaction or proposed transaction involving the other Party.
9. No Waiver. No failure or delay by either Party or any of its Representatives in exercising any right, power or privilege under this Agreement will operate as a waiver thereof, and no single or partial exercise of any such right, power or privilege will preclude any other or future exercise thereof or the exercise of any other right, power or privilege under this Agreement. No provision of this Agreement can be waived or amended except by means of a written instrument that is validly executed on behalf of both of the Parties and that refers specifically to the particular provision or provisions being waived or amended.
10. Remedies. Each Party acknowledges that money damages would not be a sufficient remedy for any breach of this Agreement by such Party or by any of such Party’s Representatives and that the other Party would suffer irreparable harm as a result of any such breach. Accordingly, each Party will also be entitled to equitable relief, including injunction and specific performance, as a remedy for any breach or threatened breach of this Agreement by the other Party or any of the other Party’s Representatives (without the need for posting a bond or providing other security). The equitable remedies referred to above will not be deemed to be the exclusive remedies for a breach of this Agreement, but rather will be in addition to all other remedies available at law or in equity to the Parties.
11. Successors and Assigns; Applicable Law; Jurisdiction and Venue. This Agreement will be binding upon and inure to the benefit of each Party and its Representatives and their respective heirs, successors and assigns. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware (without giving effect to principles of conflicts of laws). Each Party: (a) irrevocably and unconditionally consents and submits to the jurisdiction of the state and federal courts located in the State of Delaware for purposes of any action, suit or proceeding arising out of or relating to this Agreement; (b) irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of or relating to this Agreement in any state or federal court located in the State of Delaware; and (c) irrevocably and unconditionally waives the right to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any action, suit or proceeding arising out of or relating to this Agreement that is brought in any state or federal court located in the State of Delaware has been brought in an inconvenient forum.
12. Confidential Information. For purposes of this Agreement, the Provider’s “Confidential Information” will be deemed to include only the following:
(a) any information (including any technology, know-how, patent application, test result, research study, business plan, budget, forecast or projection) relating directly or indirectly to the business of the Provider, any predecessor entity or any subsidiary or other affiliate of the Provider (whether prepared by the Provider or by any other Person and whether or not in written form) that is or that has, within the last thirty (30) days, been made available to the Recipient or any Representative of the Recipient by or on behalf of the Provider or any Representative of the Provider;
(b) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that is or has been prepared by or for the Recipient or any Representative of the Recipient and that contains, reflects, interprets or is based directly or indirectly upon any information of the type referred to in clause (a) of this Section 12;
(c) the existence and terms of this Agreement, and the fact that information of the type referred to in clause (a) of this Section 12 has been made available to the Recipient or any of its Representatives; and
(d) the fact that discussions or negotiations are or may be taking place with respect to a Transaction involving the Parties, and the proposed terms of any such transaction.
However, the Provider’s “Confidential Information” will not be deemed to include:
(i) any information that is or becomes generally available to the public other than as a direct or indirect result of the disclosure of any of such information by the Recipient or by any of the Recipient’s Representatives;
(ii) any information that was in the Recipient’s possession prior to the time it was first made available to the Recipient or any of the Recipient’s Representatives by or on behalf of the Provider or any of the Provider’s Representatives, provided that the source of such information was not and is not reasonably known to the Recipient to be bound by any contractual or other obligation of confidentiality to the Provider or to any other Person with respect to any of such information;
(iii) any information that becomes available to the Recipient on a non-confidential basis from a source other than the Provider or any of the Provider’s Representatives, provided that such source is not reasonably known to the Recipient to be bound by any contractual or other obligation of confidentiality to the Provider or to any other Person with respect to any of such information; or
(iv) any information that is developed by or on behalf of the Recipient independently of the disclosure of Confidential Information and without reference to or use of Confidential Information.
13. Miscellaneous.
(a) For purposes of this Agreement, a Party’s “Representatives” will be deemed to include each Person that is or becomes (i) a subsidiary or other affiliate of such Party, or (ii) an officer, director, employee, partner, attorney, advisor, accountant, agent or representative of such Party or of any of such Party’s subsidiaries or other affiliates.
(b) The term “Person,” as used in this Agreement, will be broadly interpreted to include any individual and any corporation, partnership, entity, group, tribunal or governmental authority.
(c) Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction.
(d) By making Confidential Information or other information available to the Recipient or the Recipient’s Representatives, the Provider is not, and shall not be deemed to be, granting (expressly or by implication) any license or other right under or with respect to any patent, trade secret, copyright, trademark or other proprietary or intellectual property right. Neither the Recipient nor the Recipient’s Representatives shall file any patent application containing any claim to any subject matter derived from the Confidential Information of the Provider.
(e) To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client privilege, work product doctrine or any other applicable privilege or doctrine concerning any Confidential Information or any pending, threatened or prospective action, suit, proceeding, investigation, arbitration or dispute, (i) Provider, or the applicable direct or indirect subsidiary of Provider, is not waiving and shall not be deemed to have waived or diminished its attorney-client privileges, work-product protections, or other applicable privileges or doctrines as a result of disclosing any Confidential Information (including Confidential Information related to pending or threatened litigation) and (ii) it is acknowledged and agreed that the Parties have a commonality of interest with respect to such Confidential Information or action, suit, proceeding, investigation, arbitration or dispute and that it is the Parties’ mutual desire, intention and understanding that the sharing of such materials and other information is not intended to, and shall not, affect the confidentiality of any of such materials or other information or waive or diminish the continued protection of any of such materials or other information under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine. Accordingly, all Confidential Information that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine shall remain entitled to protection thereunder and shall be entitled to protection under the joint defense doctrine, and the Parties agree to take all measures necessary to preserve, to the fullest extent possible, the applicability of all such privileges or doctrines.
(f) This Agreement constitutes the entire agreement between the Recipient and the Provider regarding the subject matter hereof and supersedes any prior agreement between the Recipient and the Provider regarding the subject matter hereof.
(g) This Agreement will terminate 12 months from the effective date of this Agreement, unless earlier terminated by either Party at any time upon 30 days written notice to the other Party. The termination of this Agreement shall not relieve the Recipient of the obligations hereunder with respect to Confidential Information of the Provider (which shall survive any such termination and continue for a period of three years from the effective date of this Agreement, provided that such obligations with respect to any trade secrets of the Provider will survive indefinitely), or relieve either party of its obligations under Section 6 of this Agreement or relieve Buyer of its obligations under Section 7 of this Agreement (which shall survive for the stated durations thereof), and the provisions of Sections 3, 5, 8, 9, 10, 11 and 13 shall remain in full force and effect and survive any termination of this Agreement.
(h) The Recipient agrees not to export, directly or indirectly, any U.S. source technical data acquired from the Provider or any products utilizing such data to countries outside the United States, which export may be in violation of the United States export laws or regulations.
(i) The Parties hereto confirm their agreement that this Agreement, as well as any amendment hereto and all other documents related hereto, including legal notices, shall be in the English language only.
[Signature Page Next]
ARMO BIOSCIENCES, INC. ELI LILLY AND COMPANY
By: /s/ Peter Van Vlasselaer By: /s/ Timothy C. Dolan
Title: CEO Title: V.P., Business Development
Address: 575 Chesapeake Dr. Address: Lilly Corporate Center
Redwood City, CA 94063 Indianapolis, IN
| Entailment |
624_nda-2 | 624_nda-2_0 | Q: Confidential Information shall only include technical information.
Text: Exhibit (d)(3)
NON-DISCLOSURE AGREEMENT
This NON-DISCLOSURE AGREEMENT (“Agreement”) is being entered into as of March 19, 2018 between ARMO Biosciences, Inc., a Delaware corporation (“Seller”), and Eli Lilly and Company, an Indiana corporation (“Buyer” and with Seller referred to collectively as the “Parties” and individually as a “Party”).
In order to facilitate the consideration and negotiation of a possible negotiated transaction involving Buyer’s acquisition of all of the equity interests in Seller (a “Transaction”), each Party has either requested or may request access to certain non-public information regarding the other Party and the other Party’s subsidiaries. (Each Party, in its capacity as a provider of information, is referred to in this Agreement as the “Provider”; and each Party, in its capacity as a recipient of information, is referred to in this Agreement as the “Recipient”.) This Agreement sets forth the Parties’ obligations regarding the use and disclosure of such information and regarding various related matters.
The Parties, intending to be legally bound, acknowledge and agree as follows:
1. Limitations on Use and Disclosure of Confidential Information. Neither the Recipient nor any of the Recipient’s Representatives (as defined in Section 13 below) will, at any time, directly or indirectly:
(a) make use of any of the Provider’s Confidential Information (as defined in Section 12 below), except for the specific purpose of considering, evaluating and negotiating a Transaction between the Parties; or
(b) subject to Section 4 below, disclose any of the Provider’s Confidential Information to any other Person (as defined in Section 13 below).
The Recipient will be liable and responsible for any breach of this Agreement by any of its Representatives and for any other action or conduct on the part of any of its Representatives that is inconsistent with any provision of this Agreement. The Recipient will (at its own expense) take all reasonable actions necessary to restrain its Representatives from making any unauthorized use or disclosure of any of the Provider’s Confidential Information.
2. Provider Contact Person. Any request by the Recipient or any of its Representatives to review any of the Provider’s Confidential Information must be directed to the individual(s) identified opposite the name of the Provider on EXHIBIT A (the “Provider Contact Person”). Neither the Recipient nor any of the Recipient’s Representatives will contact or otherwise communicate with any other Representative of the Provider in connection with a Transaction without the prior written authorization of the Provider Contact Person.
3. No Representations by Provider. Neither the Provider nor any of the Provider’s Representatives will be under any obligation to make any particular Confidential Information of the Provider available to the Recipient or any of the Recipient’s Representatives or to supplement or update any Confidential Information of the Provider previously furnished.
Neither the Provider nor any of its Representatives has made or is making any representation or warranty, express or implied, as to the accuracy or completeness of any of the Provider’s Confidential Information, and neither the Provider nor any of its Representatives will have any liability to the Recipient or to any of the Recipient’s Representatives on any basis (including, without limitation, in contract, tort or under United States federal or state securities laws or otherwise) relating to or resulting from the use of any of the Provider’s Confidential Information or any inaccuracies or errors therein or omissions therefrom. Only those representations and warranties that are included in any final definitive written agreement that provides for the consummation of a Transaction between the Parties (a “Definitive Agreement”) will have legal effect.
4. Permitted Disclosures.
(a) Notwithstanding the limitations set forth in Section 1 above:
(i) the Recipient may disclose Confidential Information of the Provider if and to the extent that the Provider consents in writing to the Recipient’s disclosure thereof;
(ii) subject to Section 4(b) below, the Recipient may disclose Confidential Information of the Provider to any Representative of the Recipient, but only to the extent such Representative (A) needs to know such Confidential Information for the purpose of helping the Recipient evaluate or negotiate a Transaction between the Parties, and (B) has been provided with a copy of this Agreement and has agreed to abide and be bound by the provisions hereof or is otherwise bound by confidentiality obligations at least as restrictive as those contained in this Agreement; and
(iii) subject to Section 4(c) below, the Recipient may disclose Confidential Information of the Provider to the extent required by applicable law or governmental regulation or by valid legal process or stock exchange rule.
(b) If the Provider delivers to the Recipient a written notice stating that certain Confidential Information of the Provider may be disclosed only to specified Representatives of the Recipient (such notice, a “Permitted Representatives Notice”), then, notwithstanding anything to the contrary contained in Section 4(a)(ii) above, the Recipient shall not thereafter disclose or permit the disclosure of any of such Confidential Information to any other Representative of the Recipient (any such other Representative, an “Impermissible Representative”). For clarity, if the Recipient disclosed, or permitted the disclosure of, any such certain Confidential Information to an Impermissible Representative prior to the Recipient’s receipt of the Permitted Representatives Notice, such disclosure shall not be deemed a breach of this Agreement.
(c) If the Recipient or any of the Recipient’s Representatives is required by law or governmental regulation or by subpoena or other valid legal process to disclose any of the Provider’s Confidential Information to any Person, then the Recipient will promptly provide the Provider with written notice of the applicable law, regulation or process so that the Provider may seek a protective order or other appropriate remedy. The Recipient and its Representatives will cooperate with the Provider and the Provider’s Representatives (at the Provider’s sole expense) in any attempt by the Provider to obtain any such protective order or other remedy. If the Provider elects not to seek, or is unsuccessful in obtaining, any such protective order or other remedy in connection with any requirement that the Recipient disclose Confidential Information of the Provider, then the Recipient may disclose such Confidential Information to the extent legally required; provided however, that the Recipient and its Representatives will use their reasonable efforts to ensure that such Confidential Information is treated confidentially by each Person to whom it is disclosed.
5. Return of Confidential Information. Upon the Provider’s request, the Recipient and the Recipient’s Representatives will promptly deliver to the Provider any of the Provider’s Confidential Information (and all copies thereof) obtained or possessed by the Recipient or any of the Recipient’s Representatives; provided, however, that, in lieu of delivering such Confidential Information to the Provider, the Recipient may destroy such Confidential Information and deliver to the Provider a certificate confirming their destruction; provided further, that Recipient shall not be required to return or destroy copies of Confidential Information created pursuant to Recipient’s automatic archiving and back-up procedures. Notwithstanding the delivery to the Provider, the destruction by the Recipient or the automatic archiving by Recipient of Confidential Information of the Provider pursuant to this Section 5, the Recipient and its Representatives will continue to be bound by their confidentiality obligations and other obligations under this Agreement with respect to such Confidential Information.
6. Limitation on Soliciting Employees. During the 12 month period commencing on the date of this Agreement, each Party agrees that neither it nor any of its direct or indirect subsidiaries who is or becomes aware of the negotiation of a possible Transaction between the Parties shall solicit for employment any employee of the other Party (or any of such other Party’s direct or indirect subsidiaries) with whom it (or any of its direct or indirect subsidiaries) came into contact in connection with a possible Transaction; provided, however, that this Section 6 will not prevent either Party or its direct or indirect subsidiaries from making generalized searches for employees by causing to be placed any general advertisement or similar notices or engaging search firms, provided that that such searches are not targeted specifically at employees of the other Party or its direct or indirect subsidiaries.
7. Standstill Provision. During the 12 month period commencing on the date of this Agreement (the “Standstill Period”), neither Buyer nor any of Buyer’s subsidiaries or other Representatives on behalf of Buyer will, in any manner, directly or indirectly:
(a) make, effect, initiate, cause or participate in (i) any acquisition of beneficial ownership of any securities of Seller or any securities of any subsidiary of Seller, (ii) any acquisition of any assets of Seller or any assets of any subsidiary of Seller, (iii) any tender offer, exchange offer, merger, business combination, recapitalization, restructuring, liquidation, dissolution or extraordinary transaction involving Seller or any subsidiary of Seller or involving any securities or assets of Seller or any securities 4r assets of any subsidiary of Seller, or (iv) any “solicitation” of “proxies” (as those terms are used in the proxy rules of the Securities and Exchange Commission) or consents with respect to any securities of Seller or any subsidiary of Seller;
(b) form, join or participate in a “group” (as defined in the Securities Exchange Act of 1934 and the rules promulgated thereunder) with respect to the beneficial ownership of any securities of Seller or any subsidiary of Seller;
(c) act, alone or in concert with others, to seek to control or influence the management, board of directors or policies of Seller or any subsidiary of Seller;
(d) take any action that might require Seller to make a public announcement regarding any of the types of matters set forth in clause (a) of this Section 7;
(e) agree or offer to take, or encourage or propose (publicly or otherwise) the taking of, any action referred to in clause (a), (b), (c) or (d) of this Section 7;
(f) assist, induce or encourage any other Person to take any action of the type referred to in clause (a), (b), (c), (d) or (e) of this Section 7;
(g) enter into any discussions, negotiations, arrangement or agreement with any other Person relating to any of the foregoing; or
(h) request or propose that Seller or any of Seller’s Representatives amend, waive or consider the amendment or waiver of any provision set forth in this Section 7;
provided that Buyer shall not be prohibited from making or discussing any offers in a confidential, non-public manner that does not violate sub-clause (d) above regarding the Transaction directly to or with the management or the Board of Directors of Seller, or their designated Representatives (provided that the contents, subject and existence of any such communications shall constitute Confidential Information hereunder).
The standstill provisions of this Section 7 shall not apply to the Parties’ entry into or consummation of the transactions contemplated by a Definitive Agreement. The standstill provisions of this Section 7 shall not apply in the event that, without any violation of the standstill provision, (1) any third party unrelated to Buyer has made any public announcement of its intent to commence a tender offer or exchange offer for more than 50% of the capital stock of Seller, (ii) Seller publicly announces that it has entered into a definitive agreement for a transaction or series of transactions (whether structured as a tender offer, exchange offer, merger, business combination, sale of assets or other similar transaction) that, if consummated, would result in a sale of more than 50% of the capital stock of Seller or a sale of all or substantially all of the assets of Seller, or (iii) any third party unrelated to Buyer commences, or makes a public announcement of its intention to commence, a proxy contest or proxy solicitation with respect to the election of, or enters into an agreement, commitment or understanding with respect to the replacement or addition of, members of the Board of Directors of the Seller such that a majority of the Board of Directors of Seller would be designated by such third party. The standstill provisions of this Section 7 shall automatically become applicable again if the third party announces its intent not to proceed with the proposed transaction described in Section 7(a) above; provided, however, that the Standstill Period shall not be extended beyond its original term. The expiration of the Standstill Period will not terminate or otherwise affect any of the other provisions of this letter agreement.
8. No Obligation to Pursue Transaction. Unless the Parties enter into a Definitive Agreement, no agreement providing for a transaction involving either of the Parties will be deemed to exist between the Parties, and neither Party will be under any obligation to negotiate or enter into any such agreement or transaction with the other Party. Each Party recognizes that, except as expressly provided in any legally binding written agreement between the Parties that is executed on or after the date of this Agreement: (i) the other Party and its Representatives will be free to negotiate with, and to enter into any agreement or transaction with, any other interested party; and (ii) such Party will not have any rights or claims against the other Party or any of the other Party’s Representatives arising out of or relating to any transaction or proposed transaction involving the other Party.
9. No Waiver. No failure or delay by either Party or any of its Representatives in exercising any right, power or privilege under this Agreement will operate as a waiver thereof, and no single or partial exercise of any such right, power or privilege will preclude any other or future exercise thereof or the exercise of any other right, power or privilege under this Agreement. No provision of this Agreement can be waived or amended except by means of a written instrument that is validly executed on behalf of both of the Parties and that refers specifically to the particular provision or provisions being waived or amended.
10. Remedies. Each Party acknowledges that money damages would not be a sufficient remedy for any breach of this Agreement by such Party or by any of such Party’s Representatives and that the other Party would suffer irreparable harm as a result of any such breach. Accordingly, each Party will also be entitled to equitable relief, including injunction and specific performance, as a remedy for any breach or threatened breach of this Agreement by the other Party or any of the other Party’s Representatives (without the need for posting a bond or providing other security). The equitable remedies referred to above will not be deemed to be the exclusive remedies for a breach of this Agreement, but rather will be in addition to all other remedies available at law or in equity to the Parties.
11. Successors and Assigns; Applicable Law; Jurisdiction and Venue. This Agreement will be binding upon and inure to the benefit of each Party and its Representatives and their respective heirs, successors and assigns. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware (without giving effect to principles of conflicts of laws). Each Party: (a) irrevocably and unconditionally consents and submits to the jurisdiction of the state and federal courts located in the State of Delaware for purposes of any action, suit or proceeding arising out of or relating to this Agreement; (b) irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of or relating to this Agreement in any state or federal court located in the State of Delaware; and (c) irrevocably and unconditionally waives the right to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any action, suit or proceeding arising out of or relating to this Agreement that is brought in any state or federal court located in the State of Delaware has been brought in an inconvenient forum.
12. Confidential Information. For purposes of this Agreement, the Provider’s “Confidential Information” will be deemed to include only the following:
(a) any information (including any technology, know-how, patent application, test result, research study, business plan, budget, forecast or projection) relating directly or indirectly to the business of the Provider, any predecessor entity or any subsidiary or other affiliate of the Provider (whether prepared by the Provider or by any other Person and whether or not in written form) that is or that has, within the last thirty (30) days, been made available to the Recipient or any Representative of the Recipient by or on behalf of the Provider or any Representative of the Provider;
(b) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that is or has been prepared by or for the Recipient or any Representative of the Recipient and that contains, reflects, interprets or is based directly or indirectly upon any information of the type referred to in clause (a) of this Section 12;
(c) the existence and terms of this Agreement, and the fact that information of the type referred to in clause (a) of this Section 12 has been made available to the Recipient or any of its Representatives; and
(d) the fact that discussions or negotiations are or may be taking place with respect to a Transaction involving the Parties, and the proposed terms of any such transaction.
However, the Provider’s “Confidential Information” will not be deemed to include:
(i) any information that is or becomes generally available to the public other than as a direct or indirect result of the disclosure of any of such information by the Recipient or by any of the Recipient’s Representatives;
(ii) any information that was in the Recipient’s possession prior to the time it was first made available to the Recipient or any of the Recipient’s Representatives by or on behalf of the Provider or any of the Provider’s Representatives, provided that the source of such information was not and is not reasonably known to the Recipient to be bound by any contractual or other obligation of confidentiality to the Provider or to any other Person with respect to any of such information;
(iii) any information that becomes available to the Recipient on a non-confidential basis from a source other than the Provider or any of the Provider’s Representatives, provided that such source is not reasonably known to the Recipient to be bound by any contractual or other obligation of confidentiality to the Provider or to any other Person with respect to any of such information; or
(iv) any information that is developed by or on behalf of the Recipient independently of the disclosure of Confidential Information and without reference to or use of Confidential Information.
13. Miscellaneous.
(a) For purposes of this Agreement, a Party’s “Representatives” will be deemed to include each Person that is or becomes (i) a subsidiary or other affiliate of such Party, or (ii) an officer, director, employee, partner, attorney, advisor, accountant, agent or representative of such Party or of any of such Party’s subsidiaries or other affiliates.
(b) The term “Person,” as used in this Agreement, will be broadly interpreted to include any individual and any corporation, partnership, entity, group, tribunal or governmental authority.
(c) Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction.
(d) By making Confidential Information or other information available to the Recipient or the Recipient’s Representatives, the Provider is not, and shall not be deemed to be, granting (expressly or by implication) any license or other right under or with respect to any patent, trade secret, copyright, trademark or other proprietary or intellectual property right. Neither the Recipient nor the Recipient’s Representatives shall file any patent application containing any claim to any subject matter derived from the Confidential Information of the Provider.
(e) To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client privilege, work product doctrine or any other applicable privilege or doctrine concerning any Confidential Information or any pending, threatened or prospective action, suit, proceeding, investigation, arbitration or dispute, (i) Provider, or the applicable direct or indirect subsidiary of Provider, is not waiving and shall not be deemed to have waived or diminished its attorney-client privileges, work-product protections, or other applicable privileges or doctrines as a result of disclosing any Confidential Information (including Confidential Information related to pending or threatened litigation) and (ii) it is acknowledged and agreed that the Parties have a commonality of interest with respect to such Confidential Information or action, suit, proceeding, investigation, arbitration or dispute and that it is the Parties’ mutual desire, intention and understanding that the sharing of such materials and other information is not intended to, and shall not, affect the confidentiality of any of such materials or other information or waive or diminish the continued protection of any of such materials or other information under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine. Accordingly, all Confidential Information that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine shall remain entitled to protection thereunder and shall be entitled to protection under the joint defense doctrine, and the Parties agree to take all measures necessary to preserve, to the fullest extent possible, the applicability of all such privileges or doctrines.
(f) This Agreement constitutes the entire agreement between the Recipient and the Provider regarding the subject matter hereof and supersedes any prior agreement between the Recipient and the Provider regarding the subject matter hereof.
(g) This Agreement will terminate 12 months from the effective date of this Agreement, unless earlier terminated by either Party at any time upon 30 days written notice to the other Party. The termination of this Agreement shall not relieve the Recipient of the obligations hereunder with respect to Confidential Information of the Provider (which shall survive any such termination and continue for a period of three years from the effective date of this Agreement, provided that such obligations with respect to any trade secrets of the Provider will survive indefinitely), or relieve either party of its obligations under Section 6 of this Agreement or relieve Buyer of its obligations under Section 7 of this Agreement (which shall survive for the stated durations thereof), and the provisions of Sections 3, 5, 8, 9, 10, 11 and 13 shall remain in full force and effect and survive any termination of this Agreement.
(h) The Recipient agrees not to export, directly or indirectly, any U.S. source technical data acquired from the Provider or any products utilizing such data to countries outside the United States, which export may be in violation of the United States export laws or regulations.
(i) The Parties hereto confirm their agreement that this Agreement, as well as any amendment hereto and all other documents related hereto, including legal notices, shall be in the English language only.
[Signature Page Next]
ARMO BIOSCIENCES, INC. ELI LILLY AND COMPANY
By: /s/ Peter Van Vlasselaer By: /s/ Timothy C. Dolan
Title: CEO Title: V.P., Business Development
Address: 575 Chesapeake Dr. Address: Lilly Corporate Center
Redwood City, CA 94063 Indianapolis, IN
| Contradiction |
624_nda-1 | 624_nda-1_0 | Q: All Confidential Information shall be expressly identified by the Disclosing Party.
Text: Exhibit (d)(3)
NON-DISCLOSURE AGREEMENT
This NON-DISCLOSURE AGREEMENT (“Agreement”) is being entered into as of March 19, 2018 between ARMO Biosciences, Inc., a Delaware corporation (“Seller”), and Eli Lilly and Company, an Indiana corporation (“Buyer” and with Seller referred to collectively as the “Parties” and individually as a “Party”).
In order to facilitate the consideration and negotiation of a possible negotiated transaction involving Buyer’s acquisition of all of the equity interests in Seller (a “Transaction”), each Party has either requested or may request access to certain non-public information regarding the other Party and the other Party’s subsidiaries. (Each Party, in its capacity as a provider of information, is referred to in this Agreement as the “Provider”; and each Party, in its capacity as a recipient of information, is referred to in this Agreement as the “Recipient”.) This Agreement sets forth the Parties’ obligations regarding the use and disclosure of such information and regarding various related matters.
The Parties, intending to be legally bound, acknowledge and agree as follows:
1. Limitations on Use and Disclosure of Confidential Information. Neither the Recipient nor any of the Recipient’s Representatives (as defined in Section 13 below) will, at any time, directly or indirectly:
(a) make use of any of the Provider’s Confidential Information (as defined in Section 12 below), except for the specific purpose of considering, evaluating and negotiating a Transaction between the Parties; or
(b) subject to Section 4 below, disclose any of the Provider’s Confidential Information to any other Person (as defined in Section 13 below).
The Recipient will be liable and responsible for any breach of this Agreement by any of its Representatives and for any other action or conduct on the part of any of its Representatives that is inconsistent with any provision of this Agreement. The Recipient will (at its own expense) take all reasonable actions necessary to restrain its Representatives from making any unauthorized use or disclosure of any of the Provider’s Confidential Information.
2. Provider Contact Person. Any request by the Recipient or any of its Representatives to review any of the Provider’s Confidential Information must be directed to the individual(s) identified opposite the name of the Provider on EXHIBIT A (the “Provider Contact Person”). Neither the Recipient nor any of the Recipient’s Representatives will contact or otherwise communicate with any other Representative of the Provider in connection with a Transaction without the prior written authorization of the Provider Contact Person.
3. No Representations by Provider. Neither the Provider nor any of the Provider’s Representatives will be under any obligation to make any particular Confidential Information of the Provider available to the Recipient or any of the Recipient’s Representatives or to supplement or update any Confidential Information of the Provider previously furnished.
Neither the Provider nor any of its Representatives has made or is making any representation or warranty, express or implied, as to the accuracy or completeness of any of the Provider’s Confidential Information, and neither the Provider nor any of its Representatives will have any liability to the Recipient or to any of the Recipient’s Representatives on any basis (including, without limitation, in contract, tort or under United States federal or state securities laws or otherwise) relating to or resulting from the use of any of the Provider’s Confidential Information or any inaccuracies or errors therein or omissions therefrom. Only those representations and warranties that are included in any final definitive written agreement that provides for the consummation of a Transaction between the Parties (a “Definitive Agreement”) will have legal effect.
4. Permitted Disclosures.
(a) Notwithstanding the limitations set forth in Section 1 above:
(i) the Recipient may disclose Confidential Information of the Provider if and to the extent that the Provider consents in writing to the Recipient’s disclosure thereof;
(ii) subject to Section 4(b) below, the Recipient may disclose Confidential Information of the Provider to any Representative of the Recipient, but only to the extent such Representative (A) needs to know such Confidential Information for the purpose of helping the Recipient evaluate or negotiate a Transaction between the Parties, and (B) has been provided with a copy of this Agreement and has agreed to abide and be bound by the provisions hereof or is otherwise bound by confidentiality obligations at least as restrictive as those contained in this Agreement; and
(iii) subject to Section 4(c) below, the Recipient may disclose Confidential Information of the Provider to the extent required by applicable law or governmental regulation or by valid legal process or stock exchange rule.
(b) If the Provider delivers to the Recipient a written notice stating that certain Confidential Information of the Provider may be disclosed only to specified Representatives of the Recipient (such notice, a “Permitted Representatives Notice”), then, notwithstanding anything to the contrary contained in Section 4(a)(ii) above, the Recipient shall not thereafter disclose or permit the disclosure of any of such Confidential Information to any other Representative of the Recipient (any such other Representative, an “Impermissible Representative”). For clarity, if the Recipient disclosed, or permitted the disclosure of, any such certain Confidential Information to an Impermissible Representative prior to the Recipient’s receipt of the Permitted Representatives Notice, such disclosure shall not be deemed a breach of this Agreement.
(c) If the Recipient or any of the Recipient’s Representatives is required by law or governmental regulation or by subpoena or other valid legal process to disclose any of the Provider’s Confidential Information to any Person, then the Recipient will promptly provide the Provider with written notice of the applicable law, regulation or process so that the Provider may seek a protective order or other appropriate remedy. The Recipient and its Representatives will cooperate with the Provider and the Provider’s Representatives (at the Provider’s sole expense) in any attempt by the Provider to obtain any such protective order or other remedy. If the Provider elects not to seek, or is unsuccessful in obtaining, any such protective order or other remedy in connection with any requirement that the Recipient disclose Confidential Information of the Provider, then the Recipient may disclose such Confidential Information to the extent legally required; provided however, that the Recipient and its Representatives will use their reasonable efforts to ensure that such Confidential Information is treated confidentially by each Person to whom it is disclosed.
5. Return of Confidential Information. Upon the Provider’s request, the Recipient and the Recipient’s Representatives will promptly deliver to the Provider any of the Provider’s Confidential Information (and all copies thereof) obtained or possessed by the Recipient or any of the Recipient’s Representatives; provided, however, that, in lieu of delivering such Confidential Information to the Provider, the Recipient may destroy such Confidential Information and deliver to the Provider a certificate confirming their destruction; provided further, that Recipient shall not be required to return or destroy copies of Confidential Information created pursuant to Recipient’s automatic archiving and back-up procedures. Notwithstanding the delivery to the Provider, the destruction by the Recipient or the automatic archiving by Recipient of Confidential Information of the Provider pursuant to this Section 5, the Recipient and its Representatives will continue to be bound by their confidentiality obligations and other obligations under this Agreement with respect to such Confidential Information.
6. Limitation on Soliciting Employees. During the 12 month period commencing on the date of this Agreement, each Party agrees that neither it nor any of its direct or indirect subsidiaries who is or becomes aware of the negotiation of a possible Transaction between the Parties shall solicit for employment any employee of the other Party (or any of such other Party’s direct or indirect subsidiaries) with whom it (or any of its direct or indirect subsidiaries) came into contact in connection with a possible Transaction; provided, however, that this Section 6 will not prevent either Party or its direct or indirect subsidiaries from making generalized searches for employees by causing to be placed any general advertisement or similar notices or engaging search firms, provided that that such searches are not targeted specifically at employees of the other Party or its direct or indirect subsidiaries.
7. Standstill Provision. During the 12 month period commencing on the date of this Agreement (the “Standstill Period”), neither Buyer nor any of Buyer’s subsidiaries or other Representatives on behalf of Buyer will, in any manner, directly or indirectly:
(a) make, effect, initiate, cause or participate in (i) any acquisition of beneficial ownership of any securities of Seller or any securities of any subsidiary of Seller, (ii) any acquisition of any assets of Seller or any assets of any subsidiary of Seller, (iii) any tender offer, exchange offer, merger, business combination, recapitalization, restructuring, liquidation, dissolution or extraordinary transaction involving Seller or any subsidiary of Seller or involving any securities or assets of Seller or any securities 4r assets of any subsidiary of Seller, or (iv) any “solicitation” of “proxies” (as those terms are used in the proxy rules of the Securities and Exchange Commission) or consents with respect to any securities of Seller or any subsidiary of Seller;
(b) form, join or participate in a “group” (as defined in the Securities Exchange Act of 1934 and the rules promulgated thereunder) with respect to the beneficial ownership of any securities of Seller or any subsidiary of Seller;
(c) act, alone or in concert with others, to seek to control or influence the management, board of directors or policies of Seller or any subsidiary of Seller;
(d) take any action that might require Seller to make a public announcement regarding any of the types of matters set forth in clause (a) of this Section 7;
(e) agree or offer to take, or encourage or propose (publicly or otherwise) the taking of, any action referred to in clause (a), (b), (c) or (d) of this Section 7;
(f) assist, induce or encourage any other Person to take any action of the type referred to in clause (a), (b), (c), (d) or (e) of this Section 7;
(g) enter into any discussions, negotiations, arrangement or agreement with any other Person relating to any of the foregoing; or
(h) request or propose that Seller or any of Seller’s Representatives amend, waive or consider the amendment or waiver of any provision set forth in this Section 7;
provided that Buyer shall not be prohibited from making or discussing any offers in a confidential, non-public manner that does not violate sub-clause (d) above regarding the Transaction directly to or with the management or the Board of Directors of Seller, or their designated Representatives (provided that the contents, subject and existence of any such communications shall constitute Confidential Information hereunder).
The standstill provisions of this Section 7 shall not apply to the Parties’ entry into or consummation of the transactions contemplated by a Definitive Agreement. The standstill provisions of this Section 7 shall not apply in the event that, without any violation of the standstill provision, (1) any third party unrelated to Buyer has made any public announcement of its intent to commence a tender offer or exchange offer for more than 50% of the capital stock of Seller, (ii) Seller publicly announces that it has entered into a definitive agreement for a transaction or series of transactions (whether structured as a tender offer, exchange offer, merger, business combination, sale of assets or other similar transaction) that, if consummated, would result in a sale of more than 50% of the capital stock of Seller or a sale of all or substantially all of the assets of Seller, or (iii) any third party unrelated to Buyer commences, or makes a public announcement of its intention to commence, a proxy contest or proxy solicitation with respect to the election of, or enters into an agreement, commitment or understanding with respect to the replacement or addition of, members of the Board of Directors of the Seller such that a majority of the Board of Directors of Seller would be designated by such third party. The standstill provisions of this Section 7 shall automatically become applicable again if the third party announces its intent not to proceed with the proposed transaction described in Section 7(a) above; provided, however, that the Standstill Period shall not be extended beyond its original term. The expiration of the Standstill Period will not terminate or otherwise affect any of the other provisions of this letter agreement.
8. No Obligation to Pursue Transaction. Unless the Parties enter into a Definitive Agreement, no agreement providing for a transaction involving either of the Parties will be deemed to exist between the Parties, and neither Party will be under any obligation to negotiate or enter into any such agreement or transaction with the other Party. Each Party recognizes that, except as expressly provided in any legally binding written agreement between the Parties that is executed on or after the date of this Agreement: (i) the other Party and its Representatives will be free to negotiate with, and to enter into any agreement or transaction with, any other interested party; and (ii) such Party will not have any rights or claims against the other Party or any of the other Party’s Representatives arising out of or relating to any transaction or proposed transaction involving the other Party.
9. No Waiver. No failure or delay by either Party or any of its Representatives in exercising any right, power or privilege under this Agreement will operate as a waiver thereof, and no single or partial exercise of any such right, power or privilege will preclude any other or future exercise thereof or the exercise of any other right, power or privilege under this Agreement. No provision of this Agreement can be waived or amended except by means of a written instrument that is validly executed on behalf of both of the Parties and that refers specifically to the particular provision or provisions being waived or amended.
10. Remedies. Each Party acknowledges that money damages would not be a sufficient remedy for any breach of this Agreement by such Party or by any of such Party’s Representatives and that the other Party would suffer irreparable harm as a result of any such breach. Accordingly, each Party will also be entitled to equitable relief, including injunction and specific performance, as a remedy for any breach or threatened breach of this Agreement by the other Party or any of the other Party’s Representatives (without the need for posting a bond or providing other security). The equitable remedies referred to above will not be deemed to be the exclusive remedies for a breach of this Agreement, but rather will be in addition to all other remedies available at law or in equity to the Parties.
11. Successors and Assigns; Applicable Law; Jurisdiction and Venue. This Agreement will be binding upon and inure to the benefit of each Party and its Representatives and their respective heirs, successors and assigns. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware (without giving effect to principles of conflicts of laws). Each Party: (a) irrevocably and unconditionally consents and submits to the jurisdiction of the state and federal courts located in the State of Delaware for purposes of any action, suit or proceeding arising out of or relating to this Agreement; (b) irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of or relating to this Agreement in any state or federal court located in the State of Delaware; and (c) irrevocably and unconditionally waives the right to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any action, suit or proceeding arising out of or relating to this Agreement that is brought in any state or federal court located in the State of Delaware has been brought in an inconvenient forum.
12. Confidential Information. For purposes of this Agreement, the Provider’s “Confidential Information” will be deemed to include only the following:
(a) any information (including any technology, know-how, patent application, test result, research study, business plan, budget, forecast or projection) relating directly or indirectly to the business of the Provider, any predecessor entity or any subsidiary or other affiliate of the Provider (whether prepared by the Provider or by any other Person and whether or not in written form) that is or that has, within the last thirty (30) days, been made available to the Recipient or any Representative of the Recipient by or on behalf of the Provider or any Representative of the Provider;
(b) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that is or has been prepared by or for the Recipient or any Representative of the Recipient and that contains, reflects, interprets or is based directly or indirectly upon any information of the type referred to in clause (a) of this Section 12;
(c) the existence and terms of this Agreement, and the fact that information of the type referred to in clause (a) of this Section 12 has been made available to the Recipient or any of its Representatives; and
(d) the fact that discussions or negotiations are or may be taking place with respect to a Transaction involving the Parties, and the proposed terms of any such transaction.
However, the Provider’s “Confidential Information” will not be deemed to include:
(i) any information that is or becomes generally available to the public other than as a direct or indirect result of the disclosure of any of such information by the Recipient or by any of the Recipient’s Representatives;
(ii) any information that was in the Recipient’s possession prior to the time it was first made available to the Recipient or any of the Recipient’s Representatives by or on behalf of the Provider or any of the Provider’s Representatives, provided that the source of such information was not and is not reasonably known to the Recipient to be bound by any contractual or other obligation of confidentiality to the Provider or to any other Person with respect to any of such information;
(iii) any information that becomes available to the Recipient on a non-confidential basis from a source other than the Provider or any of the Provider’s Representatives, provided that such source is not reasonably known to the Recipient to be bound by any contractual or other obligation of confidentiality to the Provider or to any other Person with respect to any of such information; or
(iv) any information that is developed by or on behalf of the Recipient independently of the disclosure of Confidential Information and without reference to or use of Confidential Information.
13. Miscellaneous.
(a) For purposes of this Agreement, a Party’s “Representatives” will be deemed to include each Person that is or becomes (i) a subsidiary or other affiliate of such Party, or (ii) an officer, director, employee, partner, attorney, advisor, accountant, agent or representative of such Party or of any of such Party’s subsidiaries or other affiliates.
(b) The term “Person,” as used in this Agreement, will be broadly interpreted to include any individual and any corporation, partnership, entity, group, tribunal or governmental authority.
(c) Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction.
(d) By making Confidential Information or other information available to the Recipient or the Recipient’s Representatives, the Provider is not, and shall not be deemed to be, granting (expressly or by implication) any license or other right under or with respect to any patent, trade secret, copyright, trademark or other proprietary or intellectual property right. Neither the Recipient nor the Recipient’s Representatives shall file any patent application containing any claim to any subject matter derived from the Confidential Information of the Provider.
(e) To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client privilege, work product doctrine or any other applicable privilege or doctrine concerning any Confidential Information or any pending, threatened or prospective action, suit, proceeding, investigation, arbitration or dispute, (i) Provider, or the applicable direct or indirect subsidiary of Provider, is not waiving and shall not be deemed to have waived or diminished its attorney-client privileges, work-product protections, or other applicable privileges or doctrines as a result of disclosing any Confidential Information (including Confidential Information related to pending or threatened litigation) and (ii) it is acknowledged and agreed that the Parties have a commonality of interest with respect to such Confidential Information or action, suit, proceeding, investigation, arbitration or dispute and that it is the Parties’ mutual desire, intention and understanding that the sharing of such materials and other information is not intended to, and shall not, affect the confidentiality of any of such materials or other information or waive or diminish the continued protection of any of such materials or other information under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine. Accordingly, all Confidential Information that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine shall remain entitled to protection thereunder and shall be entitled to protection under the joint defense doctrine, and the Parties agree to take all measures necessary to preserve, to the fullest extent possible, the applicability of all such privileges or doctrines.
(f) This Agreement constitutes the entire agreement between the Recipient and the Provider regarding the subject matter hereof and supersedes any prior agreement between the Recipient and the Provider regarding the subject matter hereof.
(g) This Agreement will terminate 12 months from the effective date of this Agreement, unless earlier terminated by either Party at any time upon 30 days written notice to the other Party. The termination of this Agreement shall not relieve the Recipient of the obligations hereunder with respect to Confidential Information of the Provider (which shall survive any such termination and continue for a period of three years from the effective date of this Agreement, provided that such obligations with respect to any trade secrets of the Provider will survive indefinitely), or relieve either party of its obligations under Section 6 of this Agreement or relieve Buyer of its obligations under Section 7 of this Agreement (which shall survive for the stated durations thereof), and the provisions of Sections 3, 5, 8, 9, 10, 11 and 13 shall remain in full force and effect and survive any termination of this Agreement.
(h) The Recipient agrees not to export, directly or indirectly, any U.S. source technical data acquired from the Provider or any products utilizing such data to countries outside the United States, which export may be in violation of the United States export laws or regulations.
(i) The Parties hereto confirm their agreement that this Agreement, as well as any amendment hereto and all other documents related hereto, including legal notices, shall be in the English language only.
[Signature Page Next]
ARMO BIOSCIENCES, INC. ELI LILLY AND COMPANY
By: /s/ Peter Van Vlasselaer By: /s/ Timothy C. Dolan
Title: CEO Title: V.P., Business Development
Address: 575 Chesapeake Dr. Address: Lilly Corporate Center
Redwood City, CA 94063 Indianapolis, IN
| Not mentioned |
624_nda-19 | 624_nda-19_0 | Q: Some obligations of Agreement may survive termination of Agreement.
Text: Exhibit (d)(3)
NON-DISCLOSURE AGREEMENT
This NON-DISCLOSURE AGREEMENT (“Agreement”) is being entered into as of March 19, 2018 between ARMO Biosciences, Inc., a Delaware corporation (“Seller”), and Eli Lilly and Company, an Indiana corporation (“Buyer” and with Seller referred to collectively as the “Parties” and individually as a “Party”).
In order to facilitate the consideration and negotiation of a possible negotiated transaction involving Buyer’s acquisition of all of the equity interests in Seller (a “Transaction”), each Party has either requested or may request access to certain non-public information regarding the other Party and the other Party’s subsidiaries. (Each Party, in its capacity as a provider of information, is referred to in this Agreement as the “Provider”; and each Party, in its capacity as a recipient of information, is referred to in this Agreement as the “Recipient”.) This Agreement sets forth the Parties’ obligations regarding the use and disclosure of such information and regarding various related matters.
The Parties, intending to be legally bound, acknowledge and agree as follows:
1. Limitations on Use and Disclosure of Confidential Information. Neither the Recipient nor any of the Recipient’s Representatives (as defined in Section 13 below) will, at any time, directly or indirectly:
(a) make use of any of the Provider’s Confidential Information (as defined in Section 12 below), except for the specific purpose of considering, evaluating and negotiating a Transaction between the Parties; or
(b) subject to Section 4 below, disclose any of the Provider’s Confidential Information to any other Person (as defined in Section 13 below).
The Recipient will be liable and responsible for any breach of this Agreement by any of its Representatives and for any other action or conduct on the part of any of its Representatives that is inconsistent with any provision of this Agreement. The Recipient will (at its own expense) take all reasonable actions necessary to restrain its Representatives from making any unauthorized use or disclosure of any of the Provider’s Confidential Information.
2. Provider Contact Person. Any request by the Recipient or any of its Representatives to review any of the Provider’s Confidential Information must be directed to the individual(s) identified opposite the name of the Provider on EXHIBIT A (the “Provider Contact Person”). Neither the Recipient nor any of the Recipient’s Representatives will contact or otherwise communicate with any other Representative of the Provider in connection with a Transaction without the prior written authorization of the Provider Contact Person.
3. No Representations by Provider. Neither the Provider nor any of the Provider’s Representatives will be under any obligation to make any particular Confidential Information of the Provider available to the Recipient or any of the Recipient’s Representatives or to supplement or update any Confidential Information of the Provider previously furnished.
Neither the Provider nor any of its Representatives has made or is making any representation or warranty, express or implied, as to the accuracy or completeness of any of the Provider’s Confidential Information, and neither the Provider nor any of its Representatives will have any liability to the Recipient or to any of the Recipient’s Representatives on any basis (including, without limitation, in contract, tort or under United States federal or state securities laws or otherwise) relating to or resulting from the use of any of the Provider’s Confidential Information or any inaccuracies or errors therein or omissions therefrom. Only those representations and warranties that are included in any final definitive written agreement that provides for the consummation of a Transaction between the Parties (a “Definitive Agreement”) will have legal effect.
4. Permitted Disclosures.
(a) Notwithstanding the limitations set forth in Section 1 above:
(i) the Recipient may disclose Confidential Information of the Provider if and to the extent that the Provider consents in writing to the Recipient’s disclosure thereof;
(ii) subject to Section 4(b) below, the Recipient may disclose Confidential Information of the Provider to any Representative of the Recipient, but only to the extent such Representative (A) needs to know such Confidential Information for the purpose of helping the Recipient evaluate or negotiate a Transaction between the Parties, and (B) has been provided with a copy of this Agreement and has agreed to abide and be bound by the provisions hereof or is otherwise bound by confidentiality obligations at least as restrictive as those contained in this Agreement; and
(iii) subject to Section 4(c) below, the Recipient may disclose Confidential Information of the Provider to the extent required by applicable law or governmental regulation or by valid legal process or stock exchange rule.
(b) If the Provider delivers to the Recipient a written notice stating that certain Confidential Information of the Provider may be disclosed only to specified Representatives of the Recipient (such notice, a “Permitted Representatives Notice”), then, notwithstanding anything to the contrary contained in Section 4(a)(ii) above, the Recipient shall not thereafter disclose or permit the disclosure of any of such Confidential Information to any other Representative of the Recipient (any such other Representative, an “Impermissible Representative”). For clarity, if the Recipient disclosed, or permitted the disclosure of, any such certain Confidential Information to an Impermissible Representative prior to the Recipient’s receipt of the Permitted Representatives Notice, such disclosure shall not be deemed a breach of this Agreement.
(c) If the Recipient or any of the Recipient’s Representatives is required by law or governmental regulation or by subpoena or other valid legal process to disclose any of the Provider’s Confidential Information to any Person, then the Recipient will promptly provide the Provider with written notice of the applicable law, regulation or process so that the Provider may seek a protective order or other appropriate remedy. The Recipient and its Representatives will cooperate with the Provider and the Provider’s Representatives (at the Provider’s sole expense) in any attempt by the Provider to obtain any such protective order or other remedy. If the Provider elects not to seek, or is unsuccessful in obtaining, any such protective order or other remedy in connection with any requirement that the Recipient disclose Confidential Information of the Provider, then the Recipient may disclose such Confidential Information to the extent legally required; provided however, that the Recipient and its Representatives will use their reasonable efforts to ensure that such Confidential Information is treated confidentially by each Person to whom it is disclosed.
5. Return of Confidential Information. Upon the Provider’s request, the Recipient and the Recipient’s Representatives will promptly deliver to the Provider any of the Provider’s Confidential Information (and all copies thereof) obtained or possessed by the Recipient or any of the Recipient’s Representatives; provided, however, that, in lieu of delivering such Confidential Information to the Provider, the Recipient may destroy such Confidential Information and deliver to the Provider a certificate confirming their destruction; provided further, that Recipient shall not be required to return or destroy copies of Confidential Information created pursuant to Recipient’s automatic archiving and back-up procedures. Notwithstanding the delivery to the Provider, the destruction by the Recipient or the automatic archiving by Recipient of Confidential Information of the Provider pursuant to this Section 5, the Recipient and its Representatives will continue to be bound by their confidentiality obligations and other obligations under this Agreement with respect to such Confidential Information.
6. Limitation on Soliciting Employees. During the 12 month period commencing on the date of this Agreement, each Party agrees that neither it nor any of its direct or indirect subsidiaries who is or becomes aware of the negotiation of a possible Transaction between the Parties shall solicit for employment any employee of the other Party (or any of such other Party’s direct or indirect subsidiaries) with whom it (or any of its direct or indirect subsidiaries) came into contact in connection with a possible Transaction; provided, however, that this Section 6 will not prevent either Party or its direct or indirect subsidiaries from making generalized searches for employees by causing to be placed any general advertisement or similar notices or engaging search firms, provided that that such searches are not targeted specifically at employees of the other Party or its direct or indirect subsidiaries.
7. Standstill Provision. During the 12 month period commencing on the date of this Agreement (the “Standstill Period”), neither Buyer nor any of Buyer’s subsidiaries or other Representatives on behalf of Buyer will, in any manner, directly or indirectly:
(a) make, effect, initiate, cause or participate in (i) any acquisition of beneficial ownership of any securities of Seller or any securities of any subsidiary of Seller, (ii) any acquisition of any assets of Seller or any assets of any subsidiary of Seller, (iii) any tender offer, exchange offer, merger, business combination, recapitalization, restructuring, liquidation, dissolution or extraordinary transaction involving Seller or any subsidiary of Seller or involving any securities or assets of Seller or any securities 4r assets of any subsidiary of Seller, or (iv) any “solicitation” of “proxies” (as those terms are used in the proxy rules of the Securities and Exchange Commission) or consents with respect to any securities of Seller or any subsidiary of Seller;
(b) form, join or participate in a “group” (as defined in the Securities Exchange Act of 1934 and the rules promulgated thereunder) with respect to the beneficial ownership of any securities of Seller or any subsidiary of Seller;
(c) act, alone or in concert with others, to seek to control or influence the management, board of directors or policies of Seller or any subsidiary of Seller;
(d) take any action that might require Seller to make a public announcement regarding any of the types of matters set forth in clause (a) of this Section 7;
(e) agree or offer to take, or encourage or propose (publicly or otherwise) the taking of, any action referred to in clause (a), (b), (c) or (d) of this Section 7;
(f) assist, induce or encourage any other Person to take any action of the type referred to in clause (a), (b), (c), (d) or (e) of this Section 7;
(g) enter into any discussions, negotiations, arrangement or agreement with any other Person relating to any of the foregoing; or
(h) request or propose that Seller or any of Seller’s Representatives amend, waive or consider the amendment or waiver of any provision set forth in this Section 7;
provided that Buyer shall not be prohibited from making or discussing any offers in a confidential, non-public manner that does not violate sub-clause (d) above regarding the Transaction directly to or with the management or the Board of Directors of Seller, or their designated Representatives (provided that the contents, subject and existence of any such communications shall constitute Confidential Information hereunder).
The standstill provisions of this Section 7 shall not apply to the Parties’ entry into or consummation of the transactions contemplated by a Definitive Agreement. The standstill provisions of this Section 7 shall not apply in the event that, without any violation of the standstill provision, (1) any third party unrelated to Buyer has made any public announcement of its intent to commence a tender offer or exchange offer for more than 50% of the capital stock of Seller, (ii) Seller publicly announces that it has entered into a definitive agreement for a transaction or series of transactions (whether structured as a tender offer, exchange offer, merger, business combination, sale of assets or other similar transaction) that, if consummated, would result in a sale of more than 50% of the capital stock of Seller or a sale of all or substantially all of the assets of Seller, or (iii) any third party unrelated to Buyer commences, or makes a public announcement of its intention to commence, a proxy contest or proxy solicitation with respect to the election of, or enters into an agreement, commitment or understanding with respect to the replacement or addition of, members of the Board of Directors of the Seller such that a majority of the Board of Directors of Seller would be designated by such third party. The standstill provisions of this Section 7 shall automatically become applicable again if the third party announces its intent not to proceed with the proposed transaction described in Section 7(a) above; provided, however, that the Standstill Period shall not be extended beyond its original term. The expiration of the Standstill Period will not terminate or otherwise affect any of the other provisions of this letter agreement.
8. No Obligation to Pursue Transaction. Unless the Parties enter into a Definitive Agreement, no agreement providing for a transaction involving either of the Parties will be deemed to exist between the Parties, and neither Party will be under any obligation to negotiate or enter into any such agreement or transaction with the other Party. Each Party recognizes that, except as expressly provided in any legally binding written agreement between the Parties that is executed on or after the date of this Agreement: (i) the other Party and its Representatives will be free to negotiate with, and to enter into any agreement or transaction with, any other interested party; and (ii) such Party will not have any rights or claims against the other Party or any of the other Party’s Representatives arising out of or relating to any transaction or proposed transaction involving the other Party.
9. No Waiver. No failure or delay by either Party or any of its Representatives in exercising any right, power or privilege under this Agreement will operate as a waiver thereof, and no single or partial exercise of any such right, power or privilege will preclude any other or future exercise thereof or the exercise of any other right, power or privilege under this Agreement. No provision of this Agreement can be waived or amended except by means of a written instrument that is validly executed on behalf of both of the Parties and that refers specifically to the particular provision or provisions being waived or amended.
10. Remedies. Each Party acknowledges that money damages would not be a sufficient remedy for any breach of this Agreement by such Party or by any of such Party’s Representatives and that the other Party would suffer irreparable harm as a result of any such breach. Accordingly, each Party will also be entitled to equitable relief, including injunction and specific performance, as a remedy for any breach or threatened breach of this Agreement by the other Party or any of the other Party’s Representatives (without the need for posting a bond or providing other security). The equitable remedies referred to above will not be deemed to be the exclusive remedies for a breach of this Agreement, but rather will be in addition to all other remedies available at law or in equity to the Parties.
11. Successors and Assigns; Applicable Law; Jurisdiction and Venue. This Agreement will be binding upon and inure to the benefit of each Party and its Representatives and their respective heirs, successors and assigns. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware (without giving effect to principles of conflicts of laws). Each Party: (a) irrevocably and unconditionally consents and submits to the jurisdiction of the state and federal courts located in the State of Delaware for purposes of any action, suit or proceeding arising out of or relating to this Agreement; (b) irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of or relating to this Agreement in any state or federal court located in the State of Delaware; and (c) irrevocably and unconditionally waives the right to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any action, suit or proceeding arising out of or relating to this Agreement that is brought in any state or federal court located in the State of Delaware has been brought in an inconvenient forum.
12. Confidential Information. For purposes of this Agreement, the Provider’s “Confidential Information” will be deemed to include only the following:
(a) any information (including any technology, know-how, patent application, test result, research study, business plan, budget, forecast or projection) relating directly or indirectly to the business of the Provider, any predecessor entity or any subsidiary or other affiliate of the Provider (whether prepared by the Provider or by any other Person and whether or not in written form) that is or that has, within the last thirty (30) days, been made available to the Recipient or any Representative of the Recipient by or on behalf of the Provider or any Representative of the Provider;
(b) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that is or has been prepared by or for the Recipient or any Representative of the Recipient and that contains, reflects, interprets or is based directly or indirectly upon any information of the type referred to in clause (a) of this Section 12;
(c) the existence and terms of this Agreement, and the fact that information of the type referred to in clause (a) of this Section 12 has been made available to the Recipient or any of its Representatives; and
(d) the fact that discussions or negotiations are or may be taking place with respect to a Transaction involving the Parties, and the proposed terms of any such transaction.
However, the Provider’s “Confidential Information” will not be deemed to include:
(i) any information that is or becomes generally available to the public other than as a direct or indirect result of the disclosure of any of such information by the Recipient or by any of the Recipient’s Representatives;
(ii) any information that was in the Recipient’s possession prior to the time it was first made available to the Recipient or any of the Recipient’s Representatives by or on behalf of the Provider or any of the Provider’s Representatives, provided that the source of such information was not and is not reasonably known to the Recipient to be bound by any contractual or other obligation of confidentiality to the Provider or to any other Person with respect to any of such information;
(iii) any information that becomes available to the Recipient on a non-confidential basis from a source other than the Provider or any of the Provider’s Representatives, provided that such source is not reasonably known to the Recipient to be bound by any contractual or other obligation of confidentiality to the Provider or to any other Person with respect to any of such information; or
(iv) any information that is developed by or on behalf of the Recipient independently of the disclosure of Confidential Information and without reference to or use of Confidential Information.
13. Miscellaneous.
(a) For purposes of this Agreement, a Party’s “Representatives” will be deemed to include each Person that is or becomes (i) a subsidiary or other affiliate of such Party, or (ii) an officer, director, employee, partner, attorney, advisor, accountant, agent or representative of such Party or of any of such Party’s subsidiaries or other affiliates.
(b) The term “Person,” as used in this Agreement, will be broadly interpreted to include any individual and any corporation, partnership, entity, group, tribunal or governmental authority.
(c) Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction.
(d) By making Confidential Information or other information available to the Recipient or the Recipient’s Representatives, the Provider is not, and shall not be deemed to be, granting (expressly or by implication) any license or other right under or with respect to any patent, trade secret, copyright, trademark or other proprietary or intellectual property right. Neither the Recipient nor the Recipient’s Representatives shall file any patent application containing any claim to any subject matter derived from the Confidential Information of the Provider.
(e) To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client privilege, work product doctrine or any other applicable privilege or doctrine concerning any Confidential Information or any pending, threatened or prospective action, suit, proceeding, investigation, arbitration or dispute, (i) Provider, or the applicable direct or indirect subsidiary of Provider, is not waiving and shall not be deemed to have waived or diminished its attorney-client privileges, work-product protections, or other applicable privileges or doctrines as a result of disclosing any Confidential Information (including Confidential Information related to pending or threatened litigation) and (ii) it is acknowledged and agreed that the Parties have a commonality of interest with respect to such Confidential Information or action, suit, proceeding, investigation, arbitration or dispute and that it is the Parties’ mutual desire, intention and understanding that the sharing of such materials and other information is not intended to, and shall not, affect the confidentiality of any of such materials or other information or waive or diminish the continued protection of any of such materials or other information under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine. Accordingly, all Confidential Information that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine shall remain entitled to protection thereunder and shall be entitled to protection under the joint defense doctrine, and the Parties agree to take all measures necessary to preserve, to the fullest extent possible, the applicability of all such privileges or doctrines.
(f) This Agreement constitutes the entire agreement between the Recipient and the Provider regarding the subject matter hereof and supersedes any prior agreement between the Recipient and the Provider regarding the subject matter hereof.
(g) This Agreement will terminate 12 months from the effective date of this Agreement, unless earlier terminated by either Party at any time upon 30 days written notice to the other Party. The termination of this Agreement shall not relieve the Recipient of the obligations hereunder with respect to Confidential Information of the Provider (which shall survive any such termination and continue for a period of three years from the effective date of this Agreement, provided that such obligations with respect to any trade secrets of the Provider will survive indefinitely), or relieve either party of its obligations under Section 6 of this Agreement or relieve Buyer of its obligations under Section 7 of this Agreement (which shall survive for the stated durations thereof), and the provisions of Sections 3, 5, 8, 9, 10, 11 and 13 shall remain in full force and effect and survive any termination of this Agreement.
(h) The Recipient agrees not to export, directly or indirectly, any U.S. source technical data acquired from the Provider or any products utilizing such data to countries outside the United States, which export may be in violation of the United States export laws or regulations.
(i) The Parties hereto confirm their agreement that this Agreement, as well as any amendment hereto and all other documents related hereto, including legal notices, shall be in the English language only.
[Signature Page Next]
ARMO BIOSCIENCES, INC. ELI LILLY AND COMPANY
By: /s/ Peter Van Vlasselaer By: /s/ Timothy C. Dolan
Title: CEO Title: V.P., Business Development
Address: 575 Chesapeake Dr. Address: Lilly Corporate Center
Redwood City, CA 94063 Indianapolis, IN
| Entailment |
624_nda-12 | 624_nda-12_0 | Q: Receiving Party may independently develop information similar to Confidential Information.
Text: Exhibit (d)(3)
NON-DISCLOSURE AGREEMENT
This NON-DISCLOSURE AGREEMENT (“Agreement”) is being entered into as of March 19, 2018 between ARMO Biosciences, Inc., a Delaware corporation (“Seller”), and Eli Lilly and Company, an Indiana corporation (“Buyer” and with Seller referred to collectively as the “Parties” and individually as a “Party”).
In order to facilitate the consideration and negotiation of a possible negotiated transaction involving Buyer’s acquisition of all of the equity interests in Seller (a “Transaction”), each Party has either requested or may request access to certain non-public information regarding the other Party and the other Party’s subsidiaries. (Each Party, in its capacity as a provider of information, is referred to in this Agreement as the “Provider”; and each Party, in its capacity as a recipient of information, is referred to in this Agreement as the “Recipient”.) This Agreement sets forth the Parties’ obligations regarding the use and disclosure of such information and regarding various related matters.
The Parties, intending to be legally bound, acknowledge and agree as follows:
1. Limitations on Use and Disclosure of Confidential Information. Neither the Recipient nor any of the Recipient’s Representatives (as defined in Section 13 below) will, at any time, directly or indirectly:
(a) make use of any of the Provider’s Confidential Information (as defined in Section 12 below), except for the specific purpose of considering, evaluating and negotiating a Transaction between the Parties; or
(b) subject to Section 4 below, disclose any of the Provider’s Confidential Information to any other Person (as defined in Section 13 below).
The Recipient will be liable and responsible for any breach of this Agreement by any of its Representatives and for any other action or conduct on the part of any of its Representatives that is inconsistent with any provision of this Agreement. The Recipient will (at its own expense) take all reasonable actions necessary to restrain its Representatives from making any unauthorized use or disclosure of any of the Provider’s Confidential Information.
2. Provider Contact Person. Any request by the Recipient or any of its Representatives to review any of the Provider’s Confidential Information must be directed to the individual(s) identified opposite the name of the Provider on EXHIBIT A (the “Provider Contact Person”). Neither the Recipient nor any of the Recipient’s Representatives will contact or otherwise communicate with any other Representative of the Provider in connection with a Transaction without the prior written authorization of the Provider Contact Person.
3. No Representations by Provider. Neither the Provider nor any of the Provider’s Representatives will be under any obligation to make any particular Confidential Information of the Provider available to the Recipient or any of the Recipient’s Representatives or to supplement or update any Confidential Information of the Provider previously furnished.
Neither the Provider nor any of its Representatives has made or is making any representation or warranty, express or implied, as to the accuracy or completeness of any of the Provider’s Confidential Information, and neither the Provider nor any of its Representatives will have any liability to the Recipient or to any of the Recipient’s Representatives on any basis (including, without limitation, in contract, tort or under United States federal or state securities laws or otherwise) relating to or resulting from the use of any of the Provider’s Confidential Information or any inaccuracies or errors therein or omissions therefrom. Only those representations and warranties that are included in any final definitive written agreement that provides for the consummation of a Transaction between the Parties (a “Definitive Agreement”) will have legal effect.
4. Permitted Disclosures.
(a) Notwithstanding the limitations set forth in Section 1 above:
(i) the Recipient may disclose Confidential Information of the Provider if and to the extent that the Provider consents in writing to the Recipient’s disclosure thereof;
(ii) subject to Section 4(b) below, the Recipient may disclose Confidential Information of the Provider to any Representative of the Recipient, but only to the extent such Representative (A) needs to know such Confidential Information for the purpose of helping the Recipient evaluate or negotiate a Transaction between the Parties, and (B) has been provided with a copy of this Agreement and has agreed to abide and be bound by the provisions hereof or is otherwise bound by confidentiality obligations at least as restrictive as those contained in this Agreement; and
(iii) subject to Section 4(c) below, the Recipient may disclose Confidential Information of the Provider to the extent required by applicable law or governmental regulation or by valid legal process or stock exchange rule.
(b) If the Provider delivers to the Recipient a written notice stating that certain Confidential Information of the Provider may be disclosed only to specified Representatives of the Recipient (such notice, a “Permitted Representatives Notice”), then, notwithstanding anything to the contrary contained in Section 4(a)(ii) above, the Recipient shall not thereafter disclose or permit the disclosure of any of such Confidential Information to any other Representative of the Recipient (any such other Representative, an “Impermissible Representative”). For clarity, if the Recipient disclosed, or permitted the disclosure of, any such certain Confidential Information to an Impermissible Representative prior to the Recipient’s receipt of the Permitted Representatives Notice, such disclosure shall not be deemed a breach of this Agreement.
(c) If the Recipient or any of the Recipient’s Representatives is required by law or governmental regulation or by subpoena or other valid legal process to disclose any of the Provider’s Confidential Information to any Person, then the Recipient will promptly provide the Provider with written notice of the applicable law, regulation or process so that the Provider may seek a protective order or other appropriate remedy. The Recipient and its Representatives will cooperate with the Provider and the Provider’s Representatives (at the Provider’s sole expense) in any attempt by the Provider to obtain any such protective order or other remedy. If the Provider elects not to seek, or is unsuccessful in obtaining, any such protective order or other remedy in connection with any requirement that the Recipient disclose Confidential Information of the Provider, then the Recipient may disclose such Confidential Information to the extent legally required; provided however, that the Recipient and its Representatives will use their reasonable efforts to ensure that such Confidential Information is treated confidentially by each Person to whom it is disclosed.
5. Return of Confidential Information. Upon the Provider’s request, the Recipient and the Recipient’s Representatives will promptly deliver to the Provider any of the Provider’s Confidential Information (and all copies thereof) obtained or possessed by the Recipient or any of the Recipient’s Representatives; provided, however, that, in lieu of delivering such Confidential Information to the Provider, the Recipient may destroy such Confidential Information and deliver to the Provider a certificate confirming their destruction; provided further, that Recipient shall not be required to return or destroy copies of Confidential Information created pursuant to Recipient’s automatic archiving and back-up procedures. Notwithstanding the delivery to the Provider, the destruction by the Recipient or the automatic archiving by Recipient of Confidential Information of the Provider pursuant to this Section 5, the Recipient and its Representatives will continue to be bound by their confidentiality obligations and other obligations under this Agreement with respect to such Confidential Information.
6. Limitation on Soliciting Employees. During the 12 month period commencing on the date of this Agreement, each Party agrees that neither it nor any of its direct or indirect subsidiaries who is or becomes aware of the negotiation of a possible Transaction between the Parties shall solicit for employment any employee of the other Party (or any of such other Party’s direct or indirect subsidiaries) with whom it (or any of its direct or indirect subsidiaries) came into contact in connection with a possible Transaction; provided, however, that this Section 6 will not prevent either Party or its direct or indirect subsidiaries from making generalized searches for employees by causing to be placed any general advertisement or similar notices or engaging search firms, provided that that such searches are not targeted specifically at employees of the other Party or its direct or indirect subsidiaries.
7. Standstill Provision. During the 12 month period commencing on the date of this Agreement (the “Standstill Period”), neither Buyer nor any of Buyer’s subsidiaries or other Representatives on behalf of Buyer will, in any manner, directly or indirectly:
(a) make, effect, initiate, cause or participate in (i) any acquisition of beneficial ownership of any securities of Seller or any securities of any subsidiary of Seller, (ii) any acquisition of any assets of Seller or any assets of any subsidiary of Seller, (iii) any tender offer, exchange offer, merger, business combination, recapitalization, restructuring, liquidation, dissolution or extraordinary transaction involving Seller or any subsidiary of Seller or involving any securities or assets of Seller or any securities 4r assets of any subsidiary of Seller, or (iv) any “solicitation” of “proxies” (as those terms are used in the proxy rules of the Securities and Exchange Commission) or consents with respect to any securities of Seller or any subsidiary of Seller;
(b) form, join or participate in a “group” (as defined in the Securities Exchange Act of 1934 and the rules promulgated thereunder) with respect to the beneficial ownership of any securities of Seller or any subsidiary of Seller;
(c) act, alone or in concert with others, to seek to control or influence the management, board of directors or policies of Seller or any subsidiary of Seller;
(d) take any action that might require Seller to make a public announcement regarding any of the types of matters set forth in clause (a) of this Section 7;
(e) agree or offer to take, or encourage or propose (publicly or otherwise) the taking of, any action referred to in clause (a), (b), (c) or (d) of this Section 7;
(f) assist, induce or encourage any other Person to take any action of the type referred to in clause (a), (b), (c), (d) or (e) of this Section 7;
(g) enter into any discussions, negotiations, arrangement or agreement with any other Person relating to any of the foregoing; or
(h) request or propose that Seller or any of Seller’s Representatives amend, waive or consider the amendment or waiver of any provision set forth in this Section 7;
provided that Buyer shall not be prohibited from making or discussing any offers in a confidential, non-public manner that does not violate sub-clause (d) above regarding the Transaction directly to or with the management or the Board of Directors of Seller, or their designated Representatives (provided that the contents, subject and existence of any such communications shall constitute Confidential Information hereunder).
The standstill provisions of this Section 7 shall not apply to the Parties’ entry into or consummation of the transactions contemplated by a Definitive Agreement. The standstill provisions of this Section 7 shall not apply in the event that, without any violation of the standstill provision, (1) any third party unrelated to Buyer has made any public announcement of its intent to commence a tender offer or exchange offer for more than 50% of the capital stock of Seller, (ii) Seller publicly announces that it has entered into a definitive agreement for a transaction or series of transactions (whether structured as a tender offer, exchange offer, merger, business combination, sale of assets or other similar transaction) that, if consummated, would result in a sale of more than 50% of the capital stock of Seller or a sale of all or substantially all of the assets of Seller, or (iii) any third party unrelated to Buyer commences, or makes a public announcement of its intention to commence, a proxy contest or proxy solicitation with respect to the election of, or enters into an agreement, commitment or understanding with respect to the replacement or addition of, members of the Board of Directors of the Seller such that a majority of the Board of Directors of Seller would be designated by such third party. The standstill provisions of this Section 7 shall automatically become applicable again if the third party announces its intent not to proceed with the proposed transaction described in Section 7(a) above; provided, however, that the Standstill Period shall not be extended beyond its original term. The expiration of the Standstill Period will not terminate or otherwise affect any of the other provisions of this letter agreement.
8. No Obligation to Pursue Transaction. Unless the Parties enter into a Definitive Agreement, no agreement providing for a transaction involving either of the Parties will be deemed to exist between the Parties, and neither Party will be under any obligation to negotiate or enter into any such agreement or transaction with the other Party. Each Party recognizes that, except as expressly provided in any legally binding written agreement between the Parties that is executed on or after the date of this Agreement: (i) the other Party and its Representatives will be free to negotiate with, and to enter into any agreement or transaction with, any other interested party; and (ii) such Party will not have any rights or claims against the other Party or any of the other Party’s Representatives arising out of or relating to any transaction or proposed transaction involving the other Party.
9. No Waiver. No failure or delay by either Party or any of its Representatives in exercising any right, power or privilege under this Agreement will operate as a waiver thereof, and no single or partial exercise of any such right, power or privilege will preclude any other or future exercise thereof or the exercise of any other right, power or privilege under this Agreement. No provision of this Agreement can be waived or amended except by means of a written instrument that is validly executed on behalf of both of the Parties and that refers specifically to the particular provision or provisions being waived or amended.
10. Remedies. Each Party acknowledges that money damages would not be a sufficient remedy for any breach of this Agreement by such Party or by any of such Party’s Representatives and that the other Party would suffer irreparable harm as a result of any such breach. Accordingly, each Party will also be entitled to equitable relief, including injunction and specific performance, as a remedy for any breach or threatened breach of this Agreement by the other Party or any of the other Party’s Representatives (without the need for posting a bond or providing other security). The equitable remedies referred to above will not be deemed to be the exclusive remedies for a breach of this Agreement, but rather will be in addition to all other remedies available at law or in equity to the Parties.
11. Successors and Assigns; Applicable Law; Jurisdiction and Venue. This Agreement will be binding upon and inure to the benefit of each Party and its Representatives and their respective heirs, successors and assigns. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware (without giving effect to principles of conflicts of laws). Each Party: (a) irrevocably and unconditionally consents and submits to the jurisdiction of the state and federal courts located in the State of Delaware for purposes of any action, suit or proceeding arising out of or relating to this Agreement; (b) irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of or relating to this Agreement in any state or federal court located in the State of Delaware; and (c) irrevocably and unconditionally waives the right to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any action, suit or proceeding arising out of or relating to this Agreement that is brought in any state or federal court located in the State of Delaware has been brought in an inconvenient forum.
12. Confidential Information. For purposes of this Agreement, the Provider’s “Confidential Information” will be deemed to include only the following:
(a) any information (including any technology, know-how, patent application, test result, research study, business plan, budget, forecast or projection) relating directly or indirectly to the business of the Provider, any predecessor entity or any subsidiary or other affiliate of the Provider (whether prepared by the Provider or by any other Person and whether or not in written form) that is or that has, within the last thirty (30) days, been made available to the Recipient or any Representative of the Recipient by or on behalf of the Provider or any Representative of the Provider;
(b) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that is or has been prepared by or for the Recipient or any Representative of the Recipient and that contains, reflects, interprets or is based directly or indirectly upon any information of the type referred to in clause (a) of this Section 12;
(c) the existence and terms of this Agreement, and the fact that information of the type referred to in clause (a) of this Section 12 has been made available to the Recipient or any of its Representatives; and
(d) the fact that discussions or negotiations are or may be taking place with respect to a Transaction involving the Parties, and the proposed terms of any such transaction.
However, the Provider’s “Confidential Information” will not be deemed to include:
(i) any information that is or becomes generally available to the public other than as a direct or indirect result of the disclosure of any of such information by the Recipient or by any of the Recipient’s Representatives;
(ii) any information that was in the Recipient’s possession prior to the time it was first made available to the Recipient or any of the Recipient’s Representatives by or on behalf of the Provider or any of the Provider’s Representatives, provided that the source of such information was not and is not reasonably known to the Recipient to be bound by any contractual or other obligation of confidentiality to the Provider or to any other Person with respect to any of such information;
(iii) any information that becomes available to the Recipient on a non-confidential basis from a source other than the Provider or any of the Provider’s Representatives, provided that such source is not reasonably known to the Recipient to be bound by any contractual or other obligation of confidentiality to the Provider or to any other Person with respect to any of such information; or
(iv) any information that is developed by or on behalf of the Recipient independently of the disclosure of Confidential Information and without reference to or use of Confidential Information.
13. Miscellaneous.
(a) For purposes of this Agreement, a Party’s “Representatives” will be deemed to include each Person that is or becomes (i) a subsidiary or other affiliate of such Party, or (ii) an officer, director, employee, partner, attorney, advisor, accountant, agent or representative of such Party or of any of such Party’s subsidiaries or other affiliates.
(b) The term “Person,” as used in this Agreement, will be broadly interpreted to include any individual and any corporation, partnership, entity, group, tribunal or governmental authority.
(c) Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction.
(d) By making Confidential Information or other information available to the Recipient or the Recipient’s Representatives, the Provider is not, and shall not be deemed to be, granting (expressly or by implication) any license or other right under or with respect to any patent, trade secret, copyright, trademark or other proprietary or intellectual property right. Neither the Recipient nor the Recipient’s Representatives shall file any patent application containing any claim to any subject matter derived from the Confidential Information of the Provider.
(e) To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client privilege, work product doctrine or any other applicable privilege or doctrine concerning any Confidential Information or any pending, threatened or prospective action, suit, proceeding, investigation, arbitration or dispute, (i) Provider, or the applicable direct or indirect subsidiary of Provider, is not waiving and shall not be deemed to have waived or diminished its attorney-client privileges, work-product protections, or other applicable privileges or doctrines as a result of disclosing any Confidential Information (including Confidential Information related to pending or threatened litigation) and (ii) it is acknowledged and agreed that the Parties have a commonality of interest with respect to such Confidential Information or action, suit, proceeding, investigation, arbitration or dispute and that it is the Parties’ mutual desire, intention and understanding that the sharing of such materials and other information is not intended to, and shall not, affect the confidentiality of any of such materials or other information or waive or diminish the continued protection of any of such materials or other information under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine. Accordingly, all Confidential Information that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine shall remain entitled to protection thereunder and shall be entitled to protection under the joint defense doctrine, and the Parties agree to take all measures necessary to preserve, to the fullest extent possible, the applicability of all such privileges or doctrines.
(f) This Agreement constitutes the entire agreement between the Recipient and the Provider regarding the subject matter hereof and supersedes any prior agreement between the Recipient and the Provider regarding the subject matter hereof.
(g) This Agreement will terminate 12 months from the effective date of this Agreement, unless earlier terminated by either Party at any time upon 30 days written notice to the other Party. The termination of this Agreement shall not relieve the Recipient of the obligations hereunder with respect to Confidential Information of the Provider (which shall survive any such termination and continue for a period of three years from the effective date of this Agreement, provided that such obligations with respect to any trade secrets of the Provider will survive indefinitely), or relieve either party of its obligations under Section 6 of this Agreement or relieve Buyer of its obligations under Section 7 of this Agreement (which shall survive for the stated durations thereof), and the provisions of Sections 3, 5, 8, 9, 10, 11 and 13 shall remain in full force and effect and survive any termination of this Agreement.
(h) The Recipient agrees not to export, directly or indirectly, any U.S. source technical data acquired from the Provider or any products utilizing such data to countries outside the United States, which export may be in violation of the United States export laws or regulations.
(i) The Parties hereto confirm their agreement that this Agreement, as well as any amendment hereto and all other documents related hereto, including legal notices, shall be in the English language only.
[Signature Page Next]
ARMO BIOSCIENCES, INC. ELI LILLY AND COMPANY
By: /s/ Peter Van Vlasselaer By: /s/ Timothy C. Dolan
Title: CEO Title: V.P., Business Development
Address: 575 Chesapeake Dr. Address: Lilly Corporate Center
Redwood City, CA 94063 Indianapolis, IN
| Entailment |
624_nda-20 | 624_nda-20_0 | Q: Receiving Party may retain some Confidential Information even after the return or destruction of Confidential Information.
Text: Exhibit (d)(3)
NON-DISCLOSURE AGREEMENT
This NON-DISCLOSURE AGREEMENT (“Agreement”) is being entered into as of March 19, 2018 between ARMO Biosciences, Inc., a Delaware corporation (“Seller”), and Eli Lilly and Company, an Indiana corporation (“Buyer” and with Seller referred to collectively as the “Parties” and individually as a “Party”).
In order to facilitate the consideration and negotiation of a possible negotiated transaction involving Buyer’s acquisition of all of the equity interests in Seller (a “Transaction”), each Party has either requested or may request access to certain non-public information regarding the other Party and the other Party’s subsidiaries. (Each Party, in its capacity as a provider of information, is referred to in this Agreement as the “Provider”; and each Party, in its capacity as a recipient of information, is referred to in this Agreement as the “Recipient”.) This Agreement sets forth the Parties’ obligations regarding the use and disclosure of such information and regarding various related matters.
The Parties, intending to be legally bound, acknowledge and agree as follows:
1. Limitations on Use and Disclosure of Confidential Information. Neither the Recipient nor any of the Recipient’s Representatives (as defined in Section 13 below) will, at any time, directly or indirectly:
(a) make use of any of the Provider’s Confidential Information (as defined in Section 12 below), except for the specific purpose of considering, evaluating and negotiating a Transaction between the Parties; or
(b) subject to Section 4 below, disclose any of the Provider’s Confidential Information to any other Person (as defined in Section 13 below).
The Recipient will be liable and responsible for any breach of this Agreement by any of its Representatives and for any other action or conduct on the part of any of its Representatives that is inconsistent with any provision of this Agreement. The Recipient will (at its own expense) take all reasonable actions necessary to restrain its Representatives from making any unauthorized use or disclosure of any of the Provider’s Confidential Information.
2. Provider Contact Person. Any request by the Recipient or any of its Representatives to review any of the Provider’s Confidential Information must be directed to the individual(s) identified opposite the name of the Provider on EXHIBIT A (the “Provider Contact Person”). Neither the Recipient nor any of the Recipient’s Representatives will contact or otherwise communicate with any other Representative of the Provider in connection with a Transaction without the prior written authorization of the Provider Contact Person.
3. No Representations by Provider. Neither the Provider nor any of the Provider’s Representatives will be under any obligation to make any particular Confidential Information of the Provider available to the Recipient or any of the Recipient’s Representatives or to supplement or update any Confidential Information of the Provider previously furnished.
Neither the Provider nor any of its Representatives has made or is making any representation or warranty, express or implied, as to the accuracy or completeness of any of the Provider’s Confidential Information, and neither the Provider nor any of its Representatives will have any liability to the Recipient or to any of the Recipient’s Representatives on any basis (including, without limitation, in contract, tort or under United States federal or state securities laws or otherwise) relating to or resulting from the use of any of the Provider’s Confidential Information or any inaccuracies or errors therein or omissions therefrom. Only those representations and warranties that are included in any final definitive written agreement that provides for the consummation of a Transaction between the Parties (a “Definitive Agreement”) will have legal effect.
4. Permitted Disclosures.
(a) Notwithstanding the limitations set forth in Section 1 above:
(i) the Recipient may disclose Confidential Information of the Provider if and to the extent that the Provider consents in writing to the Recipient’s disclosure thereof;
(ii) subject to Section 4(b) below, the Recipient may disclose Confidential Information of the Provider to any Representative of the Recipient, but only to the extent such Representative (A) needs to know such Confidential Information for the purpose of helping the Recipient evaluate or negotiate a Transaction between the Parties, and (B) has been provided with a copy of this Agreement and has agreed to abide and be bound by the provisions hereof or is otherwise bound by confidentiality obligations at least as restrictive as those contained in this Agreement; and
(iii) subject to Section 4(c) below, the Recipient may disclose Confidential Information of the Provider to the extent required by applicable law or governmental regulation or by valid legal process or stock exchange rule.
(b) If the Provider delivers to the Recipient a written notice stating that certain Confidential Information of the Provider may be disclosed only to specified Representatives of the Recipient (such notice, a “Permitted Representatives Notice”), then, notwithstanding anything to the contrary contained in Section 4(a)(ii) above, the Recipient shall not thereafter disclose or permit the disclosure of any of such Confidential Information to any other Representative of the Recipient (any such other Representative, an “Impermissible Representative”). For clarity, if the Recipient disclosed, or permitted the disclosure of, any such certain Confidential Information to an Impermissible Representative prior to the Recipient’s receipt of the Permitted Representatives Notice, such disclosure shall not be deemed a breach of this Agreement.
(c) If the Recipient or any of the Recipient’s Representatives is required by law or governmental regulation or by subpoena or other valid legal process to disclose any of the Provider’s Confidential Information to any Person, then the Recipient will promptly provide the Provider with written notice of the applicable law, regulation or process so that the Provider may seek a protective order or other appropriate remedy. The Recipient and its Representatives will cooperate with the Provider and the Provider’s Representatives (at the Provider’s sole expense) in any attempt by the Provider to obtain any such protective order or other remedy. If the Provider elects not to seek, or is unsuccessful in obtaining, any such protective order or other remedy in connection with any requirement that the Recipient disclose Confidential Information of the Provider, then the Recipient may disclose such Confidential Information to the extent legally required; provided however, that the Recipient and its Representatives will use their reasonable efforts to ensure that such Confidential Information is treated confidentially by each Person to whom it is disclosed.
5. Return of Confidential Information. Upon the Provider’s request, the Recipient and the Recipient’s Representatives will promptly deliver to the Provider any of the Provider’s Confidential Information (and all copies thereof) obtained or possessed by the Recipient or any of the Recipient’s Representatives; provided, however, that, in lieu of delivering such Confidential Information to the Provider, the Recipient may destroy such Confidential Information and deliver to the Provider a certificate confirming their destruction; provided further, that Recipient shall not be required to return or destroy copies of Confidential Information created pursuant to Recipient’s automatic archiving and back-up procedures. Notwithstanding the delivery to the Provider, the destruction by the Recipient or the automatic archiving by Recipient of Confidential Information of the Provider pursuant to this Section 5, the Recipient and its Representatives will continue to be bound by their confidentiality obligations and other obligations under this Agreement with respect to such Confidential Information.
6. Limitation on Soliciting Employees. During the 12 month period commencing on the date of this Agreement, each Party agrees that neither it nor any of its direct or indirect subsidiaries who is or becomes aware of the negotiation of a possible Transaction between the Parties shall solicit for employment any employee of the other Party (or any of such other Party’s direct or indirect subsidiaries) with whom it (or any of its direct or indirect subsidiaries) came into contact in connection with a possible Transaction; provided, however, that this Section 6 will not prevent either Party or its direct or indirect subsidiaries from making generalized searches for employees by causing to be placed any general advertisement or similar notices or engaging search firms, provided that that such searches are not targeted specifically at employees of the other Party or its direct or indirect subsidiaries.
7. Standstill Provision. During the 12 month period commencing on the date of this Agreement (the “Standstill Period”), neither Buyer nor any of Buyer’s subsidiaries or other Representatives on behalf of Buyer will, in any manner, directly or indirectly:
(a) make, effect, initiate, cause or participate in (i) any acquisition of beneficial ownership of any securities of Seller or any securities of any subsidiary of Seller, (ii) any acquisition of any assets of Seller or any assets of any subsidiary of Seller, (iii) any tender offer, exchange offer, merger, business combination, recapitalization, restructuring, liquidation, dissolution or extraordinary transaction involving Seller or any subsidiary of Seller or involving any securities or assets of Seller or any securities 4r assets of any subsidiary of Seller, or (iv) any “solicitation” of “proxies” (as those terms are used in the proxy rules of the Securities and Exchange Commission) or consents with respect to any securities of Seller or any subsidiary of Seller;
(b) form, join or participate in a “group” (as defined in the Securities Exchange Act of 1934 and the rules promulgated thereunder) with respect to the beneficial ownership of any securities of Seller or any subsidiary of Seller;
(c) act, alone or in concert with others, to seek to control or influence the management, board of directors or policies of Seller or any subsidiary of Seller;
(d) take any action that might require Seller to make a public announcement regarding any of the types of matters set forth in clause (a) of this Section 7;
(e) agree or offer to take, or encourage or propose (publicly or otherwise) the taking of, any action referred to in clause (a), (b), (c) or (d) of this Section 7;
(f) assist, induce or encourage any other Person to take any action of the type referred to in clause (a), (b), (c), (d) or (e) of this Section 7;
(g) enter into any discussions, negotiations, arrangement or agreement with any other Person relating to any of the foregoing; or
(h) request or propose that Seller or any of Seller’s Representatives amend, waive or consider the amendment or waiver of any provision set forth in this Section 7;
provided that Buyer shall not be prohibited from making or discussing any offers in a confidential, non-public manner that does not violate sub-clause (d) above regarding the Transaction directly to or with the management or the Board of Directors of Seller, or their designated Representatives (provided that the contents, subject and existence of any such communications shall constitute Confidential Information hereunder).
The standstill provisions of this Section 7 shall not apply to the Parties’ entry into or consummation of the transactions contemplated by a Definitive Agreement. The standstill provisions of this Section 7 shall not apply in the event that, without any violation of the standstill provision, (1) any third party unrelated to Buyer has made any public announcement of its intent to commence a tender offer or exchange offer for more than 50% of the capital stock of Seller, (ii) Seller publicly announces that it has entered into a definitive agreement for a transaction or series of transactions (whether structured as a tender offer, exchange offer, merger, business combination, sale of assets or other similar transaction) that, if consummated, would result in a sale of more than 50% of the capital stock of Seller or a sale of all or substantially all of the assets of Seller, or (iii) any third party unrelated to Buyer commences, or makes a public announcement of its intention to commence, a proxy contest or proxy solicitation with respect to the election of, or enters into an agreement, commitment or understanding with respect to the replacement or addition of, members of the Board of Directors of the Seller such that a majority of the Board of Directors of Seller would be designated by such third party. The standstill provisions of this Section 7 shall automatically become applicable again if the third party announces its intent not to proceed with the proposed transaction described in Section 7(a) above; provided, however, that the Standstill Period shall not be extended beyond its original term. The expiration of the Standstill Period will not terminate or otherwise affect any of the other provisions of this letter agreement.
8. No Obligation to Pursue Transaction. Unless the Parties enter into a Definitive Agreement, no agreement providing for a transaction involving either of the Parties will be deemed to exist between the Parties, and neither Party will be under any obligation to negotiate or enter into any such agreement or transaction with the other Party. Each Party recognizes that, except as expressly provided in any legally binding written agreement between the Parties that is executed on or after the date of this Agreement: (i) the other Party and its Representatives will be free to negotiate with, and to enter into any agreement or transaction with, any other interested party; and (ii) such Party will not have any rights or claims against the other Party or any of the other Party’s Representatives arising out of or relating to any transaction or proposed transaction involving the other Party.
9. No Waiver. No failure or delay by either Party or any of its Representatives in exercising any right, power or privilege under this Agreement will operate as a waiver thereof, and no single or partial exercise of any such right, power or privilege will preclude any other or future exercise thereof or the exercise of any other right, power or privilege under this Agreement. No provision of this Agreement can be waived or amended except by means of a written instrument that is validly executed on behalf of both of the Parties and that refers specifically to the particular provision or provisions being waived or amended.
10. Remedies. Each Party acknowledges that money damages would not be a sufficient remedy for any breach of this Agreement by such Party or by any of such Party’s Representatives and that the other Party would suffer irreparable harm as a result of any such breach. Accordingly, each Party will also be entitled to equitable relief, including injunction and specific performance, as a remedy for any breach or threatened breach of this Agreement by the other Party or any of the other Party’s Representatives (without the need for posting a bond or providing other security). The equitable remedies referred to above will not be deemed to be the exclusive remedies for a breach of this Agreement, but rather will be in addition to all other remedies available at law or in equity to the Parties.
11. Successors and Assigns; Applicable Law; Jurisdiction and Venue. This Agreement will be binding upon and inure to the benefit of each Party and its Representatives and their respective heirs, successors and assigns. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware (without giving effect to principles of conflicts of laws). Each Party: (a) irrevocably and unconditionally consents and submits to the jurisdiction of the state and federal courts located in the State of Delaware for purposes of any action, suit or proceeding arising out of or relating to this Agreement; (b) irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of or relating to this Agreement in any state or federal court located in the State of Delaware; and (c) irrevocably and unconditionally waives the right to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any action, suit or proceeding arising out of or relating to this Agreement that is brought in any state or federal court located in the State of Delaware has been brought in an inconvenient forum.
12. Confidential Information. For purposes of this Agreement, the Provider’s “Confidential Information” will be deemed to include only the following:
(a) any information (including any technology, know-how, patent application, test result, research study, business plan, budget, forecast or projection) relating directly or indirectly to the business of the Provider, any predecessor entity or any subsidiary or other affiliate of the Provider (whether prepared by the Provider or by any other Person and whether or not in written form) that is or that has, within the last thirty (30) days, been made available to the Recipient or any Representative of the Recipient by or on behalf of the Provider or any Representative of the Provider;
(b) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that is or has been prepared by or for the Recipient or any Representative of the Recipient and that contains, reflects, interprets or is based directly or indirectly upon any information of the type referred to in clause (a) of this Section 12;
(c) the existence and terms of this Agreement, and the fact that information of the type referred to in clause (a) of this Section 12 has been made available to the Recipient or any of its Representatives; and
(d) the fact that discussions or negotiations are or may be taking place with respect to a Transaction involving the Parties, and the proposed terms of any such transaction.
However, the Provider’s “Confidential Information” will not be deemed to include:
(i) any information that is or becomes generally available to the public other than as a direct or indirect result of the disclosure of any of such information by the Recipient or by any of the Recipient’s Representatives;
(ii) any information that was in the Recipient’s possession prior to the time it was first made available to the Recipient or any of the Recipient’s Representatives by or on behalf of the Provider or any of the Provider’s Representatives, provided that the source of such information was not and is not reasonably known to the Recipient to be bound by any contractual or other obligation of confidentiality to the Provider or to any other Person with respect to any of such information;
(iii) any information that becomes available to the Recipient on a non-confidential basis from a source other than the Provider or any of the Provider’s Representatives, provided that such source is not reasonably known to the Recipient to be bound by any contractual or other obligation of confidentiality to the Provider or to any other Person with respect to any of such information; or
(iv) any information that is developed by or on behalf of the Recipient independently of the disclosure of Confidential Information and without reference to or use of Confidential Information.
13. Miscellaneous.
(a) For purposes of this Agreement, a Party’s “Representatives” will be deemed to include each Person that is or becomes (i) a subsidiary or other affiliate of such Party, or (ii) an officer, director, employee, partner, attorney, advisor, accountant, agent or representative of such Party or of any of such Party’s subsidiaries or other affiliates.
(b) The term “Person,” as used in this Agreement, will be broadly interpreted to include any individual and any corporation, partnership, entity, group, tribunal or governmental authority.
(c) Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction.
(d) By making Confidential Information or other information available to the Recipient or the Recipient’s Representatives, the Provider is not, and shall not be deemed to be, granting (expressly or by implication) any license or other right under or with respect to any patent, trade secret, copyright, trademark or other proprietary or intellectual property right. Neither the Recipient nor the Recipient’s Representatives shall file any patent application containing any claim to any subject matter derived from the Confidential Information of the Provider.
(e) To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client privilege, work product doctrine or any other applicable privilege or doctrine concerning any Confidential Information or any pending, threatened or prospective action, suit, proceeding, investigation, arbitration or dispute, (i) Provider, or the applicable direct or indirect subsidiary of Provider, is not waiving and shall not be deemed to have waived or diminished its attorney-client privileges, work-product protections, or other applicable privileges or doctrines as a result of disclosing any Confidential Information (including Confidential Information related to pending or threatened litigation) and (ii) it is acknowledged and agreed that the Parties have a commonality of interest with respect to such Confidential Information or action, suit, proceeding, investigation, arbitration or dispute and that it is the Parties’ mutual desire, intention and understanding that the sharing of such materials and other information is not intended to, and shall not, affect the confidentiality of any of such materials or other information or waive or diminish the continued protection of any of such materials or other information under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine. Accordingly, all Confidential Information that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine shall remain entitled to protection thereunder and shall be entitled to protection under the joint defense doctrine, and the Parties agree to take all measures necessary to preserve, to the fullest extent possible, the applicability of all such privileges or doctrines.
(f) This Agreement constitutes the entire agreement between the Recipient and the Provider regarding the subject matter hereof and supersedes any prior agreement between the Recipient and the Provider regarding the subject matter hereof.
(g) This Agreement will terminate 12 months from the effective date of this Agreement, unless earlier terminated by either Party at any time upon 30 days written notice to the other Party. The termination of this Agreement shall not relieve the Recipient of the obligations hereunder with respect to Confidential Information of the Provider (which shall survive any such termination and continue for a period of three years from the effective date of this Agreement, provided that such obligations with respect to any trade secrets of the Provider will survive indefinitely), or relieve either party of its obligations under Section 6 of this Agreement or relieve Buyer of its obligations under Section 7 of this Agreement (which shall survive for the stated durations thereof), and the provisions of Sections 3, 5, 8, 9, 10, 11 and 13 shall remain in full force and effect and survive any termination of this Agreement.
(h) The Recipient agrees not to export, directly or indirectly, any U.S. source technical data acquired from the Provider or any products utilizing such data to countries outside the United States, which export may be in violation of the United States export laws or regulations.
(i) The Parties hereto confirm their agreement that this Agreement, as well as any amendment hereto and all other documents related hereto, including legal notices, shall be in the English language only.
[Signature Page Next]
ARMO BIOSCIENCES, INC. ELI LILLY AND COMPANY
By: /s/ Peter Van Vlasselaer By: /s/ Timothy C. Dolan
Title: CEO Title: V.P., Business Development
Address: 575 Chesapeake Dr. Address: Lilly Corporate Center
Redwood City, CA 94063 Indianapolis, IN
| Entailment |
624_nda-3 | 624_nda-3_0 | Q: Confidential Information may include verbally conveyed information.
Text: Exhibit (d)(3)
NON-DISCLOSURE AGREEMENT
This NON-DISCLOSURE AGREEMENT (“Agreement”) is being entered into as of March 19, 2018 between ARMO Biosciences, Inc., a Delaware corporation (“Seller”), and Eli Lilly and Company, an Indiana corporation (“Buyer” and with Seller referred to collectively as the “Parties” and individually as a “Party”).
In order to facilitate the consideration and negotiation of a possible negotiated transaction involving Buyer’s acquisition of all of the equity interests in Seller (a “Transaction”), each Party has either requested or may request access to certain non-public information regarding the other Party and the other Party’s subsidiaries. (Each Party, in its capacity as a provider of information, is referred to in this Agreement as the “Provider”; and each Party, in its capacity as a recipient of information, is referred to in this Agreement as the “Recipient”.) This Agreement sets forth the Parties’ obligations regarding the use and disclosure of such information and regarding various related matters.
The Parties, intending to be legally bound, acknowledge and agree as follows:
1. Limitations on Use and Disclosure of Confidential Information. Neither the Recipient nor any of the Recipient’s Representatives (as defined in Section 13 below) will, at any time, directly or indirectly:
(a) make use of any of the Provider’s Confidential Information (as defined in Section 12 below), except for the specific purpose of considering, evaluating and negotiating a Transaction between the Parties; or
(b) subject to Section 4 below, disclose any of the Provider’s Confidential Information to any other Person (as defined in Section 13 below).
The Recipient will be liable and responsible for any breach of this Agreement by any of its Representatives and for any other action or conduct on the part of any of its Representatives that is inconsistent with any provision of this Agreement. The Recipient will (at its own expense) take all reasonable actions necessary to restrain its Representatives from making any unauthorized use or disclosure of any of the Provider’s Confidential Information.
2. Provider Contact Person. Any request by the Recipient or any of its Representatives to review any of the Provider’s Confidential Information must be directed to the individual(s) identified opposite the name of the Provider on EXHIBIT A (the “Provider Contact Person”). Neither the Recipient nor any of the Recipient’s Representatives will contact or otherwise communicate with any other Representative of the Provider in connection with a Transaction without the prior written authorization of the Provider Contact Person.
3. No Representations by Provider. Neither the Provider nor any of the Provider’s Representatives will be under any obligation to make any particular Confidential Information of the Provider available to the Recipient or any of the Recipient’s Representatives or to supplement or update any Confidential Information of the Provider previously furnished.
Neither the Provider nor any of its Representatives has made or is making any representation or warranty, express or implied, as to the accuracy or completeness of any of the Provider’s Confidential Information, and neither the Provider nor any of its Representatives will have any liability to the Recipient or to any of the Recipient’s Representatives on any basis (including, without limitation, in contract, tort or under United States federal or state securities laws or otherwise) relating to or resulting from the use of any of the Provider’s Confidential Information or any inaccuracies or errors therein or omissions therefrom. Only those representations and warranties that are included in any final definitive written agreement that provides for the consummation of a Transaction between the Parties (a “Definitive Agreement”) will have legal effect.
4. Permitted Disclosures.
(a) Notwithstanding the limitations set forth in Section 1 above:
(i) the Recipient may disclose Confidential Information of the Provider if and to the extent that the Provider consents in writing to the Recipient’s disclosure thereof;
(ii) subject to Section 4(b) below, the Recipient may disclose Confidential Information of the Provider to any Representative of the Recipient, but only to the extent such Representative (A) needs to know such Confidential Information for the purpose of helping the Recipient evaluate or negotiate a Transaction between the Parties, and (B) has been provided with a copy of this Agreement and has agreed to abide and be bound by the provisions hereof or is otherwise bound by confidentiality obligations at least as restrictive as those contained in this Agreement; and
(iii) subject to Section 4(c) below, the Recipient may disclose Confidential Information of the Provider to the extent required by applicable law or governmental regulation or by valid legal process or stock exchange rule.
(b) If the Provider delivers to the Recipient a written notice stating that certain Confidential Information of the Provider may be disclosed only to specified Representatives of the Recipient (such notice, a “Permitted Representatives Notice”), then, notwithstanding anything to the contrary contained in Section 4(a)(ii) above, the Recipient shall not thereafter disclose or permit the disclosure of any of such Confidential Information to any other Representative of the Recipient (any such other Representative, an “Impermissible Representative”). For clarity, if the Recipient disclosed, or permitted the disclosure of, any such certain Confidential Information to an Impermissible Representative prior to the Recipient’s receipt of the Permitted Representatives Notice, such disclosure shall not be deemed a breach of this Agreement.
(c) If the Recipient or any of the Recipient’s Representatives is required by law or governmental regulation or by subpoena or other valid legal process to disclose any of the Provider’s Confidential Information to any Person, then the Recipient will promptly provide the Provider with written notice of the applicable law, regulation or process so that the Provider may seek a protective order or other appropriate remedy. The Recipient and its Representatives will cooperate with the Provider and the Provider’s Representatives (at the Provider’s sole expense) in any attempt by the Provider to obtain any such protective order or other remedy. If the Provider elects not to seek, or is unsuccessful in obtaining, any such protective order or other remedy in connection with any requirement that the Recipient disclose Confidential Information of the Provider, then the Recipient may disclose such Confidential Information to the extent legally required; provided however, that the Recipient and its Representatives will use their reasonable efforts to ensure that such Confidential Information is treated confidentially by each Person to whom it is disclosed.
5. Return of Confidential Information. Upon the Provider’s request, the Recipient and the Recipient’s Representatives will promptly deliver to the Provider any of the Provider’s Confidential Information (and all copies thereof) obtained or possessed by the Recipient or any of the Recipient’s Representatives; provided, however, that, in lieu of delivering such Confidential Information to the Provider, the Recipient may destroy such Confidential Information and deliver to the Provider a certificate confirming their destruction; provided further, that Recipient shall not be required to return or destroy copies of Confidential Information created pursuant to Recipient’s automatic archiving and back-up procedures. Notwithstanding the delivery to the Provider, the destruction by the Recipient or the automatic archiving by Recipient of Confidential Information of the Provider pursuant to this Section 5, the Recipient and its Representatives will continue to be bound by their confidentiality obligations and other obligations under this Agreement with respect to such Confidential Information.
6. Limitation on Soliciting Employees. During the 12 month period commencing on the date of this Agreement, each Party agrees that neither it nor any of its direct or indirect subsidiaries who is or becomes aware of the negotiation of a possible Transaction between the Parties shall solicit for employment any employee of the other Party (or any of such other Party’s direct or indirect subsidiaries) with whom it (or any of its direct or indirect subsidiaries) came into contact in connection with a possible Transaction; provided, however, that this Section 6 will not prevent either Party or its direct or indirect subsidiaries from making generalized searches for employees by causing to be placed any general advertisement or similar notices or engaging search firms, provided that that such searches are not targeted specifically at employees of the other Party or its direct or indirect subsidiaries.
7. Standstill Provision. During the 12 month period commencing on the date of this Agreement (the “Standstill Period”), neither Buyer nor any of Buyer’s subsidiaries or other Representatives on behalf of Buyer will, in any manner, directly or indirectly:
(a) make, effect, initiate, cause or participate in (i) any acquisition of beneficial ownership of any securities of Seller or any securities of any subsidiary of Seller, (ii) any acquisition of any assets of Seller or any assets of any subsidiary of Seller, (iii) any tender offer, exchange offer, merger, business combination, recapitalization, restructuring, liquidation, dissolution or extraordinary transaction involving Seller or any subsidiary of Seller or involving any securities or assets of Seller or any securities 4r assets of any subsidiary of Seller, or (iv) any “solicitation” of “proxies” (as those terms are used in the proxy rules of the Securities and Exchange Commission) or consents with respect to any securities of Seller or any subsidiary of Seller;
(b) form, join or participate in a “group” (as defined in the Securities Exchange Act of 1934 and the rules promulgated thereunder) with respect to the beneficial ownership of any securities of Seller or any subsidiary of Seller;
(c) act, alone or in concert with others, to seek to control or influence the management, board of directors or policies of Seller or any subsidiary of Seller;
(d) take any action that might require Seller to make a public announcement regarding any of the types of matters set forth in clause (a) of this Section 7;
(e) agree or offer to take, or encourage or propose (publicly or otherwise) the taking of, any action referred to in clause (a), (b), (c) or (d) of this Section 7;
(f) assist, induce or encourage any other Person to take any action of the type referred to in clause (a), (b), (c), (d) or (e) of this Section 7;
(g) enter into any discussions, negotiations, arrangement or agreement with any other Person relating to any of the foregoing; or
(h) request or propose that Seller or any of Seller’s Representatives amend, waive or consider the amendment or waiver of any provision set forth in this Section 7;
provided that Buyer shall not be prohibited from making or discussing any offers in a confidential, non-public manner that does not violate sub-clause (d) above regarding the Transaction directly to or with the management or the Board of Directors of Seller, or their designated Representatives (provided that the contents, subject and existence of any such communications shall constitute Confidential Information hereunder).
The standstill provisions of this Section 7 shall not apply to the Parties’ entry into or consummation of the transactions contemplated by a Definitive Agreement. The standstill provisions of this Section 7 shall not apply in the event that, without any violation of the standstill provision, (1) any third party unrelated to Buyer has made any public announcement of its intent to commence a tender offer or exchange offer for more than 50% of the capital stock of Seller, (ii) Seller publicly announces that it has entered into a definitive agreement for a transaction or series of transactions (whether structured as a tender offer, exchange offer, merger, business combination, sale of assets or other similar transaction) that, if consummated, would result in a sale of more than 50% of the capital stock of Seller or a sale of all or substantially all of the assets of Seller, or (iii) any third party unrelated to Buyer commences, or makes a public announcement of its intention to commence, a proxy contest or proxy solicitation with respect to the election of, or enters into an agreement, commitment or understanding with respect to the replacement or addition of, members of the Board of Directors of the Seller such that a majority of the Board of Directors of Seller would be designated by such third party. The standstill provisions of this Section 7 shall automatically become applicable again if the third party announces its intent not to proceed with the proposed transaction described in Section 7(a) above; provided, however, that the Standstill Period shall not be extended beyond its original term. The expiration of the Standstill Period will not terminate or otherwise affect any of the other provisions of this letter agreement.
8. No Obligation to Pursue Transaction. Unless the Parties enter into a Definitive Agreement, no agreement providing for a transaction involving either of the Parties will be deemed to exist between the Parties, and neither Party will be under any obligation to negotiate or enter into any such agreement or transaction with the other Party. Each Party recognizes that, except as expressly provided in any legally binding written agreement between the Parties that is executed on or after the date of this Agreement: (i) the other Party and its Representatives will be free to negotiate with, and to enter into any agreement or transaction with, any other interested party; and (ii) such Party will not have any rights or claims against the other Party or any of the other Party’s Representatives arising out of or relating to any transaction or proposed transaction involving the other Party.
9. No Waiver. No failure or delay by either Party or any of its Representatives in exercising any right, power or privilege under this Agreement will operate as a waiver thereof, and no single or partial exercise of any such right, power or privilege will preclude any other or future exercise thereof or the exercise of any other right, power or privilege under this Agreement. No provision of this Agreement can be waived or amended except by means of a written instrument that is validly executed on behalf of both of the Parties and that refers specifically to the particular provision or provisions being waived or amended.
10. Remedies. Each Party acknowledges that money damages would not be a sufficient remedy for any breach of this Agreement by such Party or by any of such Party’s Representatives and that the other Party would suffer irreparable harm as a result of any such breach. Accordingly, each Party will also be entitled to equitable relief, including injunction and specific performance, as a remedy for any breach or threatened breach of this Agreement by the other Party or any of the other Party’s Representatives (without the need for posting a bond or providing other security). The equitable remedies referred to above will not be deemed to be the exclusive remedies for a breach of this Agreement, but rather will be in addition to all other remedies available at law or in equity to the Parties.
11. Successors and Assigns; Applicable Law; Jurisdiction and Venue. This Agreement will be binding upon and inure to the benefit of each Party and its Representatives and their respective heirs, successors and assigns. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware (without giving effect to principles of conflicts of laws). Each Party: (a) irrevocably and unconditionally consents and submits to the jurisdiction of the state and federal courts located in the State of Delaware for purposes of any action, suit or proceeding arising out of or relating to this Agreement; (b) irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of or relating to this Agreement in any state or federal court located in the State of Delaware; and (c) irrevocably and unconditionally waives the right to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any action, suit or proceeding arising out of or relating to this Agreement that is brought in any state or federal court located in the State of Delaware has been brought in an inconvenient forum.
12. Confidential Information. For purposes of this Agreement, the Provider’s “Confidential Information” will be deemed to include only the following:
(a) any information (including any technology, know-how, patent application, test result, research study, business plan, budget, forecast or projection) relating directly or indirectly to the business of the Provider, any predecessor entity or any subsidiary or other affiliate of the Provider (whether prepared by the Provider or by any other Person and whether or not in written form) that is or that has, within the last thirty (30) days, been made available to the Recipient or any Representative of the Recipient by or on behalf of the Provider or any Representative of the Provider;
(b) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that is or has been prepared by or for the Recipient or any Representative of the Recipient and that contains, reflects, interprets or is based directly or indirectly upon any information of the type referred to in clause (a) of this Section 12;
(c) the existence and terms of this Agreement, and the fact that information of the type referred to in clause (a) of this Section 12 has been made available to the Recipient or any of its Representatives; and
(d) the fact that discussions or negotiations are or may be taking place with respect to a Transaction involving the Parties, and the proposed terms of any such transaction.
However, the Provider’s “Confidential Information” will not be deemed to include:
(i) any information that is or becomes generally available to the public other than as a direct or indirect result of the disclosure of any of such information by the Recipient or by any of the Recipient’s Representatives;
(ii) any information that was in the Recipient’s possession prior to the time it was first made available to the Recipient or any of the Recipient’s Representatives by or on behalf of the Provider or any of the Provider’s Representatives, provided that the source of such information was not and is not reasonably known to the Recipient to be bound by any contractual or other obligation of confidentiality to the Provider or to any other Person with respect to any of such information;
(iii) any information that becomes available to the Recipient on a non-confidential basis from a source other than the Provider or any of the Provider’s Representatives, provided that such source is not reasonably known to the Recipient to be bound by any contractual or other obligation of confidentiality to the Provider or to any other Person with respect to any of such information; or
(iv) any information that is developed by or on behalf of the Recipient independently of the disclosure of Confidential Information and without reference to or use of Confidential Information.
13. Miscellaneous.
(a) For purposes of this Agreement, a Party’s “Representatives” will be deemed to include each Person that is or becomes (i) a subsidiary or other affiliate of such Party, or (ii) an officer, director, employee, partner, attorney, advisor, accountant, agent or representative of such Party or of any of such Party’s subsidiaries or other affiliates.
(b) The term “Person,” as used in this Agreement, will be broadly interpreted to include any individual and any corporation, partnership, entity, group, tribunal or governmental authority.
(c) Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction.
(d) By making Confidential Information or other information available to the Recipient or the Recipient’s Representatives, the Provider is not, and shall not be deemed to be, granting (expressly or by implication) any license or other right under or with respect to any patent, trade secret, copyright, trademark or other proprietary or intellectual property right. Neither the Recipient nor the Recipient’s Representatives shall file any patent application containing any claim to any subject matter derived from the Confidential Information of the Provider.
(e) To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client privilege, work product doctrine or any other applicable privilege or doctrine concerning any Confidential Information or any pending, threatened or prospective action, suit, proceeding, investigation, arbitration or dispute, (i) Provider, or the applicable direct or indirect subsidiary of Provider, is not waiving and shall not be deemed to have waived or diminished its attorney-client privileges, work-product protections, or other applicable privileges or doctrines as a result of disclosing any Confidential Information (including Confidential Information related to pending or threatened litigation) and (ii) it is acknowledged and agreed that the Parties have a commonality of interest with respect to such Confidential Information or action, suit, proceeding, investigation, arbitration or dispute and that it is the Parties’ mutual desire, intention and understanding that the sharing of such materials and other information is not intended to, and shall not, affect the confidentiality of any of such materials or other information or waive or diminish the continued protection of any of such materials or other information under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine. Accordingly, all Confidential Information that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine shall remain entitled to protection thereunder and shall be entitled to protection under the joint defense doctrine, and the Parties agree to take all measures necessary to preserve, to the fullest extent possible, the applicability of all such privileges or doctrines.
(f) This Agreement constitutes the entire agreement between the Recipient and the Provider regarding the subject matter hereof and supersedes any prior agreement between the Recipient and the Provider regarding the subject matter hereof.
(g) This Agreement will terminate 12 months from the effective date of this Agreement, unless earlier terminated by either Party at any time upon 30 days written notice to the other Party. The termination of this Agreement shall not relieve the Recipient of the obligations hereunder with respect to Confidential Information of the Provider (which shall survive any such termination and continue for a period of three years from the effective date of this Agreement, provided that such obligations with respect to any trade secrets of the Provider will survive indefinitely), or relieve either party of its obligations under Section 6 of this Agreement or relieve Buyer of its obligations under Section 7 of this Agreement (which shall survive for the stated durations thereof), and the provisions of Sections 3, 5, 8, 9, 10, 11 and 13 shall remain in full force and effect and survive any termination of this Agreement.
(h) The Recipient agrees not to export, directly or indirectly, any U.S. source technical data acquired from the Provider or any products utilizing such data to countries outside the United States, which export may be in violation of the United States export laws or regulations.
(i) The Parties hereto confirm their agreement that this Agreement, as well as any amendment hereto and all other documents related hereto, including legal notices, shall be in the English language only.
[Signature Page Next]
ARMO BIOSCIENCES, INC. ELI LILLY AND COMPANY
By: /s/ Peter Van Vlasselaer By: /s/ Timothy C. Dolan
Title: CEO Title: V.P., Business Development
Address: 575 Chesapeake Dr. Address: Lilly Corporate Center
Redwood City, CA 94063 Indianapolis, IN
| Entailment |
624_nda-18 | 624_nda-18_0 | Q: Receiving Party shall not solicit some of Disclosing Party's representatives.
Text: Exhibit (d)(3)
NON-DISCLOSURE AGREEMENT
This NON-DISCLOSURE AGREEMENT (“Agreement”) is being entered into as of March 19, 2018 between ARMO Biosciences, Inc., a Delaware corporation (“Seller”), and Eli Lilly and Company, an Indiana corporation (“Buyer” and with Seller referred to collectively as the “Parties” and individually as a “Party”).
In order to facilitate the consideration and negotiation of a possible negotiated transaction involving Buyer’s acquisition of all of the equity interests in Seller (a “Transaction”), each Party has either requested or may request access to certain non-public information regarding the other Party and the other Party’s subsidiaries. (Each Party, in its capacity as a provider of information, is referred to in this Agreement as the “Provider”; and each Party, in its capacity as a recipient of information, is referred to in this Agreement as the “Recipient”.) This Agreement sets forth the Parties’ obligations regarding the use and disclosure of such information and regarding various related matters.
The Parties, intending to be legally bound, acknowledge and agree as follows:
1. Limitations on Use and Disclosure of Confidential Information. Neither the Recipient nor any of the Recipient’s Representatives (as defined in Section 13 below) will, at any time, directly or indirectly:
(a) make use of any of the Provider’s Confidential Information (as defined in Section 12 below), except for the specific purpose of considering, evaluating and negotiating a Transaction between the Parties; or
(b) subject to Section 4 below, disclose any of the Provider’s Confidential Information to any other Person (as defined in Section 13 below).
The Recipient will be liable and responsible for any breach of this Agreement by any of its Representatives and for any other action or conduct on the part of any of its Representatives that is inconsistent with any provision of this Agreement. The Recipient will (at its own expense) take all reasonable actions necessary to restrain its Representatives from making any unauthorized use or disclosure of any of the Provider’s Confidential Information.
2. Provider Contact Person. Any request by the Recipient or any of its Representatives to review any of the Provider’s Confidential Information must be directed to the individual(s) identified opposite the name of the Provider on EXHIBIT A (the “Provider Contact Person”). Neither the Recipient nor any of the Recipient’s Representatives will contact or otherwise communicate with any other Representative of the Provider in connection with a Transaction without the prior written authorization of the Provider Contact Person.
3. No Representations by Provider. Neither the Provider nor any of the Provider’s Representatives will be under any obligation to make any particular Confidential Information of the Provider available to the Recipient or any of the Recipient’s Representatives or to supplement or update any Confidential Information of the Provider previously furnished.
Neither the Provider nor any of its Representatives has made or is making any representation or warranty, express or implied, as to the accuracy or completeness of any of the Provider’s Confidential Information, and neither the Provider nor any of its Representatives will have any liability to the Recipient or to any of the Recipient’s Representatives on any basis (including, without limitation, in contract, tort or under United States federal or state securities laws or otherwise) relating to or resulting from the use of any of the Provider’s Confidential Information or any inaccuracies or errors therein or omissions therefrom. Only those representations and warranties that are included in any final definitive written agreement that provides for the consummation of a Transaction between the Parties (a “Definitive Agreement”) will have legal effect.
4. Permitted Disclosures.
(a) Notwithstanding the limitations set forth in Section 1 above:
(i) the Recipient may disclose Confidential Information of the Provider if and to the extent that the Provider consents in writing to the Recipient’s disclosure thereof;
(ii) subject to Section 4(b) below, the Recipient may disclose Confidential Information of the Provider to any Representative of the Recipient, but only to the extent such Representative (A) needs to know such Confidential Information for the purpose of helping the Recipient evaluate or negotiate a Transaction between the Parties, and (B) has been provided with a copy of this Agreement and has agreed to abide and be bound by the provisions hereof or is otherwise bound by confidentiality obligations at least as restrictive as those contained in this Agreement; and
(iii) subject to Section 4(c) below, the Recipient may disclose Confidential Information of the Provider to the extent required by applicable law or governmental regulation or by valid legal process or stock exchange rule.
(b) If the Provider delivers to the Recipient a written notice stating that certain Confidential Information of the Provider may be disclosed only to specified Representatives of the Recipient (such notice, a “Permitted Representatives Notice”), then, notwithstanding anything to the contrary contained in Section 4(a)(ii) above, the Recipient shall not thereafter disclose or permit the disclosure of any of such Confidential Information to any other Representative of the Recipient (any such other Representative, an “Impermissible Representative”). For clarity, if the Recipient disclosed, or permitted the disclosure of, any such certain Confidential Information to an Impermissible Representative prior to the Recipient’s receipt of the Permitted Representatives Notice, such disclosure shall not be deemed a breach of this Agreement.
(c) If the Recipient or any of the Recipient’s Representatives is required by law or governmental regulation or by subpoena or other valid legal process to disclose any of the Provider’s Confidential Information to any Person, then the Recipient will promptly provide the Provider with written notice of the applicable law, regulation or process so that the Provider may seek a protective order or other appropriate remedy. The Recipient and its Representatives will cooperate with the Provider and the Provider’s Representatives (at the Provider’s sole expense) in any attempt by the Provider to obtain any such protective order or other remedy. If the Provider elects not to seek, or is unsuccessful in obtaining, any such protective order or other remedy in connection with any requirement that the Recipient disclose Confidential Information of the Provider, then the Recipient may disclose such Confidential Information to the extent legally required; provided however, that the Recipient and its Representatives will use their reasonable efforts to ensure that such Confidential Information is treated confidentially by each Person to whom it is disclosed.
5. Return of Confidential Information. Upon the Provider’s request, the Recipient and the Recipient’s Representatives will promptly deliver to the Provider any of the Provider’s Confidential Information (and all copies thereof) obtained or possessed by the Recipient or any of the Recipient’s Representatives; provided, however, that, in lieu of delivering such Confidential Information to the Provider, the Recipient may destroy such Confidential Information and deliver to the Provider a certificate confirming their destruction; provided further, that Recipient shall not be required to return or destroy copies of Confidential Information created pursuant to Recipient’s automatic archiving and back-up procedures. Notwithstanding the delivery to the Provider, the destruction by the Recipient or the automatic archiving by Recipient of Confidential Information of the Provider pursuant to this Section 5, the Recipient and its Representatives will continue to be bound by their confidentiality obligations and other obligations under this Agreement with respect to such Confidential Information.
6. Limitation on Soliciting Employees. During the 12 month period commencing on the date of this Agreement, each Party agrees that neither it nor any of its direct or indirect subsidiaries who is or becomes aware of the negotiation of a possible Transaction between the Parties shall solicit for employment any employee of the other Party (or any of such other Party’s direct or indirect subsidiaries) with whom it (or any of its direct or indirect subsidiaries) came into contact in connection with a possible Transaction; provided, however, that this Section 6 will not prevent either Party or its direct or indirect subsidiaries from making generalized searches for employees by causing to be placed any general advertisement or similar notices or engaging search firms, provided that that such searches are not targeted specifically at employees of the other Party or its direct or indirect subsidiaries.
7. Standstill Provision. During the 12 month period commencing on the date of this Agreement (the “Standstill Period”), neither Buyer nor any of Buyer’s subsidiaries or other Representatives on behalf of Buyer will, in any manner, directly or indirectly:
(a) make, effect, initiate, cause or participate in (i) any acquisition of beneficial ownership of any securities of Seller or any securities of any subsidiary of Seller, (ii) any acquisition of any assets of Seller or any assets of any subsidiary of Seller, (iii) any tender offer, exchange offer, merger, business combination, recapitalization, restructuring, liquidation, dissolution or extraordinary transaction involving Seller or any subsidiary of Seller or involving any securities or assets of Seller or any securities 4r assets of any subsidiary of Seller, or (iv) any “solicitation” of “proxies” (as those terms are used in the proxy rules of the Securities and Exchange Commission) or consents with respect to any securities of Seller or any subsidiary of Seller;
(b) form, join or participate in a “group” (as defined in the Securities Exchange Act of 1934 and the rules promulgated thereunder) with respect to the beneficial ownership of any securities of Seller or any subsidiary of Seller;
(c) act, alone or in concert with others, to seek to control or influence the management, board of directors or policies of Seller or any subsidiary of Seller;
(d) take any action that might require Seller to make a public announcement regarding any of the types of matters set forth in clause (a) of this Section 7;
(e) agree or offer to take, or encourage or propose (publicly or otherwise) the taking of, any action referred to in clause (a), (b), (c) or (d) of this Section 7;
(f) assist, induce or encourage any other Person to take any action of the type referred to in clause (a), (b), (c), (d) or (e) of this Section 7;
(g) enter into any discussions, negotiations, arrangement or agreement with any other Person relating to any of the foregoing; or
(h) request or propose that Seller or any of Seller’s Representatives amend, waive or consider the amendment or waiver of any provision set forth in this Section 7;
provided that Buyer shall not be prohibited from making or discussing any offers in a confidential, non-public manner that does not violate sub-clause (d) above regarding the Transaction directly to or with the management or the Board of Directors of Seller, or their designated Representatives (provided that the contents, subject and existence of any such communications shall constitute Confidential Information hereunder).
The standstill provisions of this Section 7 shall not apply to the Parties’ entry into or consummation of the transactions contemplated by a Definitive Agreement. The standstill provisions of this Section 7 shall not apply in the event that, without any violation of the standstill provision, (1) any third party unrelated to Buyer has made any public announcement of its intent to commence a tender offer or exchange offer for more than 50% of the capital stock of Seller, (ii) Seller publicly announces that it has entered into a definitive agreement for a transaction or series of transactions (whether structured as a tender offer, exchange offer, merger, business combination, sale of assets or other similar transaction) that, if consummated, would result in a sale of more than 50% of the capital stock of Seller or a sale of all or substantially all of the assets of Seller, or (iii) any third party unrelated to Buyer commences, or makes a public announcement of its intention to commence, a proxy contest or proxy solicitation with respect to the election of, or enters into an agreement, commitment or understanding with respect to the replacement or addition of, members of the Board of Directors of the Seller such that a majority of the Board of Directors of Seller would be designated by such third party. The standstill provisions of this Section 7 shall automatically become applicable again if the third party announces its intent not to proceed with the proposed transaction described in Section 7(a) above; provided, however, that the Standstill Period shall not be extended beyond its original term. The expiration of the Standstill Period will not terminate or otherwise affect any of the other provisions of this letter agreement.
8. No Obligation to Pursue Transaction. Unless the Parties enter into a Definitive Agreement, no agreement providing for a transaction involving either of the Parties will be deemed to exist between the Parties, and neither Party will be under any obligation to negotiate or enter into any such agreement or transaction with the other Party. Each Party recognizes that, except as expressly provided in any legally binding written agreement between the Parties that is executed on or after the date of this Agreement: (i) the other Party and its Representatives will be free to negotiate with, and to enter into any agreement or transaction with, any other interested party; and (ii) such Party will not have any rights or claims against the other Party or any of the other Party’s Representatives arising out of or relating to any transaction or proposed transaction involving the other Party.
9. No Waiver. No failure or delay by either Party or any of its Representatives in exercising any right, power or privilege under this Agreement will operate as a waiver thereof, and no single or partial exercise of any such right, power or privilege will preclude any other or future exercise thereof or the exercise of any other right, power or privilege under this Agreement. No provision of this Agreement can be waived or amended except by means of a written instrument that is validly executed on behalf of both of the Parties and that refers specifically to the particular provision or provisions being waived or amended.
10. Remedies. Each Party acknowledges that money damages would not be a sufficient remedy for any breach of this Agreement by such Party or by any of such Party’s Representatives and that the other Party would suffer irreparable harm as a result of any such breach. Accordingly, each Party will also be entitled to equitable relief, including injunction and specific performance, as a remedy for any breach or threatened breach of this Agreement by the other Party or any of the other Party’s Representatives (without the need for posting a bond or providing other security). The equitable remedies referred to above will not be deemed to be the exclusive remedies for a breach of this Agreement, but rather will be in addition to all other remedies available at law or in equity to the Parties.
11. Successors and Assigns; Applicable Law; Jurisdiction and Venue. This Agreement will be binding upon and inure to the benefit of each Party and its Representatives and their respective heirs, successors and assigns. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware (without giving effect to principles of conflicts of laws). Each Party: (a) irrevocably and unconditionally consents and submits to the jurisdiction of the state and federal courts located in the State of Delaware for purposes of any action, suit or proceeding arising out of or relating to this Agreement; (b) irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of or relating to this Agreement in any state or federal court located in the State of Delaware; and (c) irrevocably and unconditionally waives the right to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any action, suit or proceeding arising out of or relating to this Agreement that is brought in any state or federal court located in the State of Delaware has been brought in an inconvenient forum.
12. Confidential Information. For purposes of this Agreement, the Provider’s “Confidential Information” will be deemed to include only the following:
(a) any information (including any technology, know-how, patent application, test result, research study, business plan, budget, forecast or projection) relating directly or indirectly to the business of the Provider, any predecessor entity or any subsidiary or other affiliate of the Provider (whether prepared by the Provider or by any other Person and whether or not in written form) that is or that has, within the last thirty (30) days, been made available to the Recipient or any Representative of the Recipient by or on behalf of the Provider or any Representative of the Provider;
(b) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that is or has been prepared by or for the Recipient or any Representative of the Recipient and that contains, reflects, interprets or is based directly or indirectly upon any information of the type referred to in clause (a) of this Section 12;
(c) the existence and terms of this Agreement, and the fact that information of the type referred to in clause (a) of this Section 12 has been made available to the Recipient or any of its Representatives; and
(d) the fact that discussions or negotiations are or may be taking place with respect to a Transaction involving the Parties, and the proposed terms of any such transaction.
However, the Provider’s “Confidential Information” will not be deemed to include:
(i) any information that is or becomes generally available to the public other than as a direct or indirect result of the disclosure of any of such information by the Recipient or by any of the Recipient’s Representatives;
(ii) any information that was in the Recipient’s possession prior to the time it was first made available to the Recipient or any of the Recipient’s Representatives by or on behalf of the Provider or any of the Provider’s Representatives, provided that the source of such information was not and is not reasonably known to the Recipient to be bound by any contractual or other obligation of confidentiality to the Provider or to any other Person with respect to any of such information;
(iii) any information that becomes available to the Recipient on a non-confidential basis from a source other than the Provider or any of the Provider’s Representatives, provided that such source is not reasonably known to the Recipient to be bound by any contractual or other obligation of confidentiality to the Provider or to any other Person with respect to any of such information; or
(iv) any information that is developed by or on behalf of the Recipient independently of the disclosure of Confidential Information and without reference to or use of Confidential Information.
13. Miscellaneous.
(a) For purposes of this Agreement, a Party’s “Representatives” will be deemed to include each Person that is or becomes (i) a subsidiary or other affiliate of such Party, or (ii) an officer, director, employee, partner, attorney, advisor, accountant, agent or representative of such Party or of any of such Party’s subsidiaries or other affiliates.
(b) The term “Person,” as used in this Agreement, will be broadly interpreted to include any individual and any corporation, partnership, entity, group, tribunal or governmental authority.
(c) Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction.
(d) By making Confidential Information or other information available to the Recipient or the Recipient’s Representatives, the Provider is not, and shall not be deemed to be, granting (expressly or by implication) any license or other right under or with respect to any patent, trade secret, copyright, trademark or other proprietary or intellectual property right. Neither the Recipient nor the Recipient’s Representatives shall file any patent application containing any claim to any subject matter derived from the Confidential Information of the Provider.
(e) To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client privilege, work product doctrine or any other applicable privilege or doctrine concerning any Confidential Information or any pending, threatened or prospective action, suit, proceeding, investigation, arbitration or dispute, (i) Provider, or the applicable direct or indirect subsidiary of Provider, is not waiving and shall not be deemed to have waived or diminished its attorney-client privileges, work-product protections, or other applicable privileges or doctrines as a result of disclosing any Confidential Information (including Confidential Information related to pending or threatened litigation) and (ii) it is acknowledged and agreed that the Parties have a commonality of interest with respect to such Confidential Information or action, suit, proceeding, investigation, arbitration or dispute and that it is the Parties’ mutual desire, intention and understanding that the sharing of such materials and other information is not intended to, and shall not, affect the confidentiality of any of such materials or other information or waive or diminish the continued protection of any of such materials or other information under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine. Accordingly, all Confidential Information that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine shall remain entitled to protection thereunder and shall be entitled to protection under the joint defense doctrine, and the Parties agree to take all measures necessary to preserve, to the fullest extent possible, the applicability of all such privileges or doctrines.
(f) This Agreement constitutes the entire agreement between the Recipient and the Provider regarding the subject matter hereof and supersedes any prior agreement between the Recipient and the Provider regarding the subject matter hereof.
(g) This Agreement will terminate 12 months from the effective date of this Agreement, unless earlier terminated by either Party at any time upon 30 days written notice to the other Party. The termination of this Agreement shall not relieve the Recipient of the obligations hereunder with respect to Confidential Information of the Provider (which shall survive any such termination and continue for a period of three years from the effective date of this Agreement, provided that such obligations with respect to any trade secrets of the Provider will survive indefinitely), or relieve either party of its obligations under Section 6 of this Agreement or relieve Buyer of its obligations under Section 7 of this Agreement (which shall survive for the stated durations thereof), and the provisions of Sections 3, 5, 8, 9, 10, 11 and 13 shall remain in full force and effect and survive any termination of this Agreement.
(h) The Recipient agrees not to export, directly or indirectly, any U.S. source technical data acquired from the Provider or any products utilizing such data to countries outside the United States, which export may be in violation of the United States export laws or regulations.
(i) The Parties hereto confirm their agreement that this Agreement, as well as any amendment hereto and all other documents related hereto, including legal notices, shall be in the English language only.
[Signature Page Next]
ARMO BIOSCIENCES, INC. ELI LILLY AND COMPANY
By: /s/ Peter Van Vlasselaer By: /s/ Timothy C. Dolan
Title: CEO Title: V.P., Business Development
Address: 575 Chesapeake Dr. Address: Lilly Corporate Center
Redwood City, CA 94063 Indianapolis, IN
| Entailment |
624_nda-7 | 624_nda-7_0 | Q: Receiving Party may share some Confidential Information with some third-parties (including consultants, agents and professional advisors).
Text: Exhibit (d)(3)
NON-DISCLOSURE AGREEMENT
This NON-DISCLOSURE AGREEMENT (“Agreement”) is being entered into as of March 19, 2018 between ARMO Biosciences, Inc., a Delaware corporation (“Seller”), and Eli Lilly and Company, an Indiana corporation (“Buyer” and with Seller referred to collectively as the “Parties” and individually as a “Party”).
In order to facilitate the consideration and negotiation of a possible negotiated transaction involving Buyer’s acquisition of all of the equity interests in Seller (a “Transaction”), each Party has either requested or may request access to certain non-public information regarding the other Party and the other Party’s subsidiaries. (Each Party, in its capacity as a provider of information, is referred to in this Agreement as the “Provider”; and each Party, in its capacity as a recipient of information, is referred to in this Agreement as the “Recipient”.) This Agreement sets forth the Parties’ obligations regarding the use and disclosure of such information and regarding various related matters.
The Parties, intending to be legally bound, acknowledge and agree as follows:
1. Limitations on Use and Disclosure of Confidential Information. Neither the Recipient nor any of the Recipient’s Representatives (as defined in Section 13 below) will, at any time, directly or indirectly:
(a) make use of any of the Provider’s Confidential Information (as defined in Section 12 below), except for the specific purpose of considering, evaluating and negotiating a Transaction between the Parties; or
(b) subject to Section 4 below, disclose any of the Provider’s Confidential Information to any other Person (as defined in Section 13 below).
The Recipient will be liable and responsible for any breach of this Agreement by any of its Representatives and for any other action or conduct on the part of any of its Representatives that is inconsistent with any provision of this Agreement. The Recipient will (at its own expense) take all reasonable actions necessary to restrain its Representatives from making any unauthorized use or disclosure of any of the Provider’s Confidential Information.
2. Provider Contact Person. Any request by the Recipient or any of its Representatives to review any of the Provider’s Confidential Information must be directed to the individual(s) identified opposite the name of the Provider on EXHIBIT A (the “Provider Contact Person”). Neither the Recipient nor any of the Recipient’s Representatives will contact or otherwise communicate with any other Representative of the Provider in connection with a Transaction without the prior written authorization of the Provider Contact Person.
3. No Representations by Provider. Neither the Provider nor any of the Provider’s Representatives will be under any obligation to make any particular Confidential Information of the Provider available to the Recipient or any of the Recipient’s Representatives or to supplement or update any Confidential Information of the Provider previously furnished.
Neither the Provider nor any of its Representatives has made or is making any representation or warranty, express or implied, as to the accuracy or completeness of any of the Provider’s Confidential Information, and neither the Provider nor any of its Representatives will have any liability to the Recipient or to any of the Recipient’s Representatives on any basis (including, without limitation, in contract, tort or under United States federal or state securities laws or otherwise) relating to or resulting from the use of any of the Provider’s Confidential Information or any inaccuracies or errors therein or omissions therefrom. Only those representations and warranties that are included in any final definitive written agreement that provides for the consummation of a Transaction between the Parties (a “Definitive Agreement”) will have legal effect.
4. Permitted Disclosures.
(a) Notwithstanding the limitations set forth in Section 1 above:
(i) the Recipient may disclose Confidential Information of the Provider if and to the extent that the Provider consents in writing to the Recipient’s disclosure thereof;
(ii) subject to Section 4(b) below, the Recipient may disclose Confidential Information of the Provider to any Representative of the Recipient, but only to the extent such Representative (A) needs to know such Confidential Information for the purpose of helping the Recipient evaluate or negotiate a Transaction between the Parties, and (B) has been provided with a copy of this Agreement and has agreed to abide and be bound by the provisions hereof or is otherwise bound by confidentiality obligations at least as restrictive as those contained in this Agreement; and
(iii) subject to Section 4(c) below, the Recipient may disclose Confidential Information of the Provider to the extent required by applicable law or governmental regulation or by valid legal process or stock exchange rule.
(b) If the Provider delivers to the Recipient a written notice stating that certain Confidential Information of the Provider may be disclosed only to specified Representatives of the Recipient (such notice, a “Permitted Representatives Notice”), then, notwithstanding anything to the contrary contained in Section 4(a)(ii) above, the Recipient shall not thereafter disclose or permit the disclosure of any of such Confidential Information to any other Representative of the Recipient (any such other Representative, an “Impermissible Representative”). For clarity, if the Recipient disclosed, or permitted the disclosure of, any such certain Confidential Information to an Impermissible Representative prior to the Recipient’s receipt of the Permitted Representatives Notice, such disclosure shall not be deemed a breach of this Agreement.
(c) If the Recipient or any of the Recipient’s Representatives is required by law or governmental regulation or by subpoena or other valid legal process to disclose any of the Provider’s Confidential Information to any Person, then the Recipient will promptly provide the Provider with written notice of the applicable law, regulation or process so that the Provider may seek a protective order or other appropriate remedy. The Recipient and its Representatives will cooperate with the Provider and the Provider’s Representatives (at the Provider’s sole expense) in any attempt by the Provider to obtain any such protective order or other remedy. If the Provider elects not to seek, or is unsuccessful in obtaining, any such protective order or other remedy in connection with any requirement that the Recipient disclose Confidential Information of the Provider, then the Recipient may disclose such Confidential Information to the extent legally required; provided however, that the Recipient and its Representatives will use their reasonable efforts to ensure that such Confidential Information is treated confidentially by each Person to whom it is disclosed.
5. Return of Confidential Information. Upon the Provider’s request, the Recipient and the Recipient’s Representatives will promptly deliver to the Provider any of the Provider’s Confidential Information (and all copies thereof) obtained or possessed by the Recipient or any of the Recipient’s Representatives; provided, however, that, in lieu of delivering such Confidential Information to the Provider, the Recipient may destroy such Confidential Information and deliver to the Provider a certificate confirming their destruction; provided further, that Recipient shall not be required to return or destroy copies of Confidential Information created pursuant to Recipient’s automatic archiving and back-up procedures. Notwithstanding the delivery to the Provider, the destruction by the Recipient or the automatic archiving by Recipient of Confidential Information of the Provider pursuant to this Section 5, the Recipient and its Representatives will continue to be bound by their confidentiality obligations and other obligations under this Agreement with respect to such Confidential Information.
6. Limitation on Soliciting Employees. During the 12 month period commencing on the date of this Agreement, each Party agrees that neither it nor any of its direct or indirect subsidiaries who is or becomes aware of the negotiation of a possible Transaction between the Parties shall solicit for employment any employee of the other Party (or any of such other Party’s direct or indirect subsidiaries) with whom it (or any of its direct or indirect subsidiaries) came into contact in connection with a possible Transaction; provided, however, that this Section 6 will not prevent either Party or its direct or indirect subsidiaries from making generalized searches for employees by causing to be placed any general advertisement or similar notices or engaging search firms, provided that that such searches are not targeted specifically at employees of the other Party or its direct or indirect subsidiaries.
7. Standstill Provision. During the 12 month period commencing on the date of this Agreement (the “Standstill Period”), neither Buyer nor any of Buyer’s subsidiaries or other Representatives on behalf of Buyer will, in any manner, directly or indirectly:
(a) make, effect, initiate, cause or participate in (i) any acquisition of beneficial ownership of any securities of Seller or any securities of any subsidiary of Seller, (ii) any acquisition of any assets of Seller or any assets of any subsidiary of Seller, (iii) any tender offer, exchange offer, merger, business combination, recapitalization, restructuring, liquidation, dissolution or extraordinary transaction involving Seller or any subsidiary of Seller or involving any securities or assets of Seller or any securities 4r assets of any subsidiary of Seller, or (iv) any “solicitation” of “proxies” (as those terms are used in the proxy rules of the Securities and Exchange Commission) or consents with respect to any securities of Seller or any subsidiary of Seller;
(b) form, join or participate in a “group” (as defined in the Securities Exchange Act of 1934 and the rules promulgated thereunder) with respect to the beneficial ownership of any securities of Seller or any subsidiary of Seller;
(c) act, alone or in concert with others, to seek to control or influence the management, board of directors or policies of Seller or any subsidiary of Seller;
(d) take any action that might require Seller to make a public announcement regarding any of the types of matters set forth in clause (a) of this Section 7;
(e) agree or offer to take, or encourage or propose (publicly or otherwise) the taking of, any action referred to in clause (a), (b), (c) or (d) of this Section 7;
(f) assist, induce or encourage any other Person to take any action of the type referred to in clause (a), (b), (c), (d) or (e) of this Section 7;
(g) enter into any discussions, negotiations, arrangement or agreement with any other Person relating to any of the foregoing; or
(h) request or propose that Seller or any of Seller’s Representatives amend, waive or consider the amendment or waiver of any provision set forth in this Section 7;
provided that Buyer shall not be prohibited from making or discussing any offers in a confidential, non-public manner that does not violate sub-clause (d) above regarding the Transaction directly to or with the management or the Board of Directors of Seller, or their designated Representatives (provided that the contents, subject and existence of any such communications shall constitute Confidential Information hereunder).
The standstill provisions of this Section 7 shall not apply to the Parties’ entry into or consummation of the transactions contemplated by a Definitive Agreement. The standstill provisions of this Section 7 shall not apply in the event that, without any violation of the standstill provision, (1) any third party unrelated to Buyer has made any public announcement of its intent to commence a tender offer or exchange offer for more than 50% of the capital stock of Seller, (ii) Seller publicly announces that it has entered into a definitive agreement for a transaction or series of transactions (whether structured as a tender offer, exchange offer, merger, business combination, sale of assets or other similar transaction) that, if consummated, would result in a sale of more than 50% of the capital stock of Seller or a sale of all or substantially all of the assets of Seller, or (iii) any third party unrelated to Buyer commences, or makes a public announcement of its intention to commence, a proxy contest or proxy solicitation with respect to the election of, or enters into an agreement, commitment or understanding with respect to the replacement or addition of, members of the Board of Directors of the Seller such that a majority of the Board of Directors of Seller would be designated by such third party. The standstill provisions of this Section 7 shall automatically become applicable again if the third party announces its intent not to proceed with the proposed transaction described in Section 7(a) above; provided, however, that the Standstill Period shall not be extended beyond its original term. The expiration of the Standstill Period will not terminate or otherwise affect any of the other provisions of this letter agreement.
8. No Obligation to Pursue Transaction. Unless the Parties enter into a Definitive Agreement, no agreement providing for a transaction involving either of the Parties will be deemed to exist between the Parties, and neither Party will be under any obligation to negotiate or enter into any such agreement or transaction with the other Party. Each Party recognizes that, except as expressly provided in any legally binding written agreement between the Parties that is executed on or after the date of this Agreement: (i) the other Party and its Representatives will be free to negotiate with, and to enter into any agreement or transaction with, any other interested party; and (ii) such Party will not have any rights or claims against the other Party or any of the other Party’s Representatives arising out of or relating to any transaction or proposed transaction involving the other Party.
9. No Waiver. No failure or delay by either Party or any of its Representatives in exercising any right, power or privilege under this Agreement will operate as a waiver thereof, and no single or partial exercise of any such right, power or privilege will preclude any other or future exercise thereof or the exercise of any other right, power or privilege under this Agreement. No provision of this Agreement can be waived or amended except by means of a written instrument that is validly executed on behalf of both of the Parties and that refers specifically to the particular provision or provisions being waived or amended.
10. Remedies. Each Party acknowledges that money damages would not be a sufficient remedy for any breach of this Agreement by such Party or by any of such Party’s Representatives and that the other Party would suffer irreparable harm as a result of any such breach. Accordingly, each Party will also be entitled to equitable relief, including injunction and specific performance, as a remedy for any breach or threatened breach of this Agreement by the other Party or any of the other Party’s Representatives (without the need for posting a bond or providing other security). The equitable remedies referred to above will not be deemed to be the exclusive remedies for a breach of this Agreement, but rather will be in addition to all other remedies available at law or in equity to the Parties.
11. Successors and Assigns; Applicable Law; Jurisdiction and Venue. This Agreement will be binding upon and inure to the benefit of each Party and its Representatives and their respective heirs, successors and assigns. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware (without giving effect to principles of conflicts of laws). Each Party: (a) irrevocably and unconditionally consents and submits to the jurisdiction of the state and federal courts located in the State of Delaware for purposes of any action, suit or proceeding arising out of or relating to this Agreement; (b) irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of or relating to this Agreement in any state or federal court located in the State of Delaware; and (c) irrevocably and unconditionally waives the right to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any action, suit or proceeding arising out of or relating to this Agreement that is brought in any state or federal court located in the State of Delaware has been brought in an inconvenient forum.
12. Confidential Information. For purposes of this Agreement, the Provider’s “Confidential Information” will be deemed to include only the following:
(a) any information (including any technology, know-how, patent application, test result, research study, business plan, budget, forecast or projection) relating directly or indirectly to the business of the Provider, any predecessor entity or any subsidiary or other affiliate of the Provider (whether prepared by the Provider or by any other Person and whether or not in written form) that is or that has, within the last thirty (30) days, been made available to the Recipient or any Representative of the Recipient by or on behalf of the Provider or any Representative of the Provider;
(b) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that is or has been prepared by or for the Recipient or any Representative of the Recipient and that contains, reflects, interprets or is based directly or indirectly upon any information of the type referred to in clause (a) of this Section 12;
(c) the existence and terms of this Agreement, and the fact that information of the type referred to in clause (a) of this Section 12 has been made available to the Recipient or any of its Representatives; and
(d) the fact that discussions or negotiations are or may be taking place with respect to a Transaction involving the Parties, and the proposed terms of any such transaction.
However, the Provider’s “Confidential Information” will not be deemed to include:
(i) any information that is or becomes generally available to the public other than as a direct or indirect result of the disclosure of any of such information by the Recipient or by any of the Recipient’s Representatives;
(ii) any information that was in the Recipient’s possession prior to the time it was first made available to the Recipient or any of the Recipient’s Representatives by or on behalf of the Provider or any of the Provider’s Representatives, provided that the source of such information was not and is not reasonably known to the Recipient to be bound by any contractual or other obligation of confidentiality to the Provider or to any other Person with respect to any of such information;
(iii) any information that becomes available to the Recipient on a non-confidential basis from a source other than the Provider or any of the Provider’s Representatives, provided that such source is not reasonably known to the Recipient to be bound by any contractual or other obligation of confidentiality to the Provider or to any other Person with respect to any of such information; or
(iv) any information that is developed by or on behalf of the Recipient independently of the disclosure of Confidential Information and without reference to or use of Confidential Information.
13. Miscellaneous.
(a) For purposes of this Agreement, a Party’s “Representatives” will be deemed to include each Person that is or becomes (i) a subsidiary or other affiliate of such Party, or (ii) an officer, director, employee, partner, attorney, advisor, accountant, agent or representative of such Party or of any of such Party’s subsidiaries or other affiliates.
(b) The term “Person,” as used in this Agreement, will be broadly interpreted to include any individual and any corporation, partnership, entity, group, tribunal or governmental authority.
(c) Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction.
(d) By making Confidential Information or other information available to the Recipient or the Recipient’s Representatives, the Provider is not, and shall not be deemed to be, granting (expressly or by implication) any license or other right under or with respect to any patent, trade secret, copyright, trademark or other proprietary or intellectual property right. Neither the Recipient nor the Recipient’s Representatives shall file any patent application containing any claim to any subject matter derived from the Confidential Information of the Provider.
(e) To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client privilege, work product doctrine or any other applicable privilege or doctrine concerning any Confidential Information or any pending, threatened or prospective action, suit, proceeding, investigation, arbitration or dispute, (i) Provider, or the applicable direct or indirect subsidiary of Provider, is not waiving and shall not be deemed to have waived or diminished its attorney-client privileges, work-product protections, or other applicable privileges or doctrines as a result of disclosing any Confidential Information (including Confidential Information related to pending or threatened litigation) and (ii) it is acknowledged and agreed that the Parties have a commonality of interest with respect to such Confidential Information or action, suit, proceeding, investigation, arbitration or dispute and that it is the Parties’ mutual desire, intention and understanding that the sharing of such materials and other information is not intended to, and shall not, affect the confidentiality of any of such materials or other information or waive or diminish the continued protection of any of such materials or other information under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine. Accordingly, all Confidential Information that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine shall remain entitled to protection thereunder and shall be entitled to protection under the joint defense doctrine, and the Parties agree to take all measures necessary to preserve, to the fullest extent possible, the applicability of all such privileges or doctrines.
(f) This Agreement constitutes the entire agreement between the Recipient and the Provider regarding the subject matter hereof and supersedes any prior agreement between the Recipient and the Provider regarding the subject matter hereof.
(g) This Agreement will terminate 12 months from the effective date of this Agreement, unless earlier terminated by either Party at any time upon 30 days written notice to the other Party. The termination of this Agreement shall not relieve the Recipient of the obligations hereunder with respect to Confidential Information of the Provider (which shall survive any such termination and continue for a period of three years from the effective date of this Agreement, provided that such obligations with respect to any trade secrets of the Provider will survive indefinitely), or relieve either party of its obligations under Section 6 of this Agreement or relieve Buyer of its obligations under Section 7 of this Agreement (which shall survive for the stated durations thereof), and the provisions of Sections 3, 5, 8, 9, 10, 11 and 13 shall remain in full force and effect and survive any termination of this Agreement.
(h) The Recipient agrees not to export, directly or indirectly, any U.S. source technical data acquired from the Provider or any products utilizing such data to countries outside the United States, which export may be in violation of the United States export laws or regulations.
(i) The Parties hereto confirm their agreement that this Agreement, as well as any amendment hereto and all other documents related hereto, including legal notices, shall be in the English language only.
[Signature Page Next]
ARMO BIOSCIENCES, INC. ELI LILLY AND COMPANY
By: /s/ Peter Van Vlasselaer By: /s/ Timothy C. Dolan
Title: CEO Title: V.P., Business Development
Address: 575 Chesapeake Dr. Address: Lilly Corporate Center
Redwood City, CA 94063 Indianapolis, IN
| Entailment |
624_nda-17 | 624_nda-17_0 | Q: Receiving Party may create a copy of some Confidential Information in some circumstances.
Text: Exhibit (d)(3)
NON-DISCLOSURE AGREEMENT
This NON-DISCLOSURE AGREEMENT (“Agreement”) is being entered into as of March 19, 2018 between ARMO Biosciences, Inc., a Delaware corporation (“Seller”), and Eli Lilly and Company, an Indiana corporation (“Buyer” and with Seller referred to collectively as the “Parties” and individually as a “Party”).
In order to facilitate the consideration and negotiation of a possible negotiated transaction involving Buyer’s acquisition of all of the equity interests in Seller (a “Transaction”), each Party has either requested or may request access to certain non-public information regarding the other Party and the other Party’s subsidiaries. (Each Party, in its capacity as a provider of information, is referred to in this Agreement as the “Provider”; and each Party, in its capacity as a recipient of information, is referred to in this Agreement as the “Recipient”.) This Agreement sets forth the Parties’ obligations regarding the use and disclosure of such information and regarding various related matters.
The Parties, intending to be legally bound, acknowledge and agree as follows:
1. Limitations on Use and Disclosure of Confidential Information. Neither the Recipient nor any of the Recipient’s Representatives (as defined in Section 13 below) will, at any time, directly or indirectly:
(a) make use of any of the Provider’s Confidential Information (as defined in Section 12 below), except for the specific purpose of considering, evaluating and negotiating a Transaction between the Parties; or
(b) subject to Section 4 below, disclose any of the Provider’s Confidential Information to any other Person (as defined in Section 13 below).
The Recipient will be liable and responsible for any breach of this Agreement by any of its Representatives and for any other action or conduct on the part of any of its Representatives that is inconsistent with any provision of this Agreement. The Recipient will (at its own expense) take all reasonable actions necessary to restrain its Representatives from making any unauthorized use or disclosure of any of the Provider’s Confidential Information.
2. Provider Contact Person. Any request by the Recipient or any of its Representatives to review any of the Provider’s Confidential Information must be directed to the individual(s) identified opposite the name of the Provider on EXHIBIT A (the “Provider Contact Person”). Neither the Recipient nor any of the Recipient’s Representatives will contact or otherwise communicate with any other Representative of the Provider in connection with a Transaction without the prior written authorization of the Provider Contact Person.
3. No Representations by Provider. Neither the Provider nor any of the Provider’s Representatives will be under any obligation to make any particular Confidential Information of the Provider available to the Recipient or any of the Recipient’s Representatives or to supplement or update any Confidential Information of the Provider previously furnished.
Neither the Provider nor any of its Representatives has made or is making any representation or warranty, express or implied, as to the accuracy or completeness of any of the Provider’s Confidential Information, and neither the Provider nor any of its Representatives will have any liability to the Recipient or to any of the Recipient’s Representatives on any basis (including, without limitation, in contract, tort or under United States federal or state securities laws or otherwise) relating to or resulting from the use of any of the Provider’s Confidential Information or any inaccuracies or errors therein or omissions therefrom. Only those representations and warranties that are included in any final definitive written agreement that provides for the consummation of a Transaction between the Parties (a “Definitive Agreement”) will have legal effect.
4. Permitted Disclosures.
(a) Notwithstanding the limitations set forth in Section 1 above:
(i) the Recipient may disclose Confidential Information of the Provider if and to the extent that the Provider consents in writing to the Recipient’s disclosure thereof;
(ii) subject to Section 4(b) below, the Recipient may disclose Confidential Information of the Provider to any Representative of the Recipient, but only to the extent such Representative (A) needs to know such Confidential Information for the purpose of helping the Recipient evaluate or negotiate a Transaction between the Parties, and (B) has been provided with a copy of this Agreement and has agreed to abide and be bound by the provisions hereof or is otherwise bound by confidentiality obligations at least as restrictive as those contained in this Agreement; and
(iii) subject to Section 4(c) below, the Recipient may disclose Confidential Information of the Provider to the extent required by applicable law or governmental regulation or by valid legal process or stock exchange rule.
(b) If the Provider delivers to the Recipient a written notice stating that certain Confidential Information of the Provider may be disclosed only to specified Representatives of the Recipient (such notice, a “Permitted Representatives Notice”), then, notwithstanding anything to the contrary contained in Section 4(a)(ii) above, the Recipient shall not thereafter disclose or permit the disclosure of any of such Confidential Information to any other Representative of the Recipient (any such other Representative, an “Impermissible Representative”). For clarity, if the Recipient disclosed, or permitted the disclosure of, any such certain Confidential Information to an Impermissible Representative prior to the Recipient’s receipt of the Permitted Representatives Notice, such disclosure shall not be deemed a breach of this Agreement.
(c) If the Recipient or any of the Recipient’s Representatives is required by law or governmental regulation or by subpoena or other valid legal process to disclose any of the Provider’s Confidential Information to any Person, then the Recipient will promptly provide the Provider with written notice of the applicable law, regulation or process so that the Provider may seek a protective order or other appropriate remedy. The Recipient and its Representatives will cooperate with the Provider and the Provider’s Representatives (at the Provider’s sole expense) in any attempt by the Provider to obtain any such protective order or other remedy. If the Provider elects not to seek, or is unsuccessful in obtaining, any such protective order or other remedy in connection with any requirement that the Recipient disclose Confidential Information of the Provider, then the Recipient may disclose such Confidential Information to the extent legally required; provided however, that the Recipient and its Representatives will use their reasonable efforts to ensure that such Confidential Information is treated confidentially by each Person to whom it is disclosed.
5. Return of Confidential Information. Upon the Provider’s request, the Recipient and the Recipient’s Representatives will promptly deliver to the Provider any of the Provider’s Confidential Information (and all copies thereof) obtained or possessed by the Recipient or any of the Recipient’s Representatives; provided, however, that, in lieu of delivering such Confidential Information to the Provider, the Recipient may destroy such Confidential Information and deliver to the Provider a certificate confirming their destruction; provided further, that Recipient shall not be required to return or destroy copies of Confidential Information created pursuant to Recipient’s automatic archiving and back-up procedures. Notwithstanding the delivery to the Provider, the destruction by the Recipient or the automatic archiving by Recipient of Confidential Information of the Provider pursuant to this Section 5, the Recipient and its Representatives will continue to be bound by their confidentiality obligations and other obligations under this Agreement with respect to such Confidential Information.
6. Limitation on Soliciting Employees. During the 12 month period commencing on the date of this Agreement, each Party agrees that neither it nor any of its direct or indirect subsidiaries who is or becomes aware of the negotiation of a possible Transaction between the Parties shall solicit for employment any employee of the other Party (or any of such other Party’s direct or indirect subsidiaries) with whom it (or any of its direct or indirect subsidiaries) came into contact in connection with a possible Transaction; provided, however, that this Section 6 will not prevent either Party or its direct or indirect subsidiaries from making generalized searches for employees by causing to be placed any general advertisement or similar notices or engaging search firms, provided that that such searches are not targeted specifically at employees of the other Party or its direct or indirect subsidiaries.
7. Standstill Provision. During the 12 month period commencing on the date of this Agreement (the “Standstill Period”), neither Buyer nor any of Buyer’s subsidiaries or other Representatives on behalf of Buyer will, in any manner, directly or indirectly:
(a) make, effect, initiate, cause or participate in (i) any acquisition of beneficial ownership of any securities of Seller or any securities of any subsidiary of Seller, (ii) any acquisition of any assets of Seller or any assets of any subsidiary of Seller, (iii) any tender offer, exchange offer, merger, business combination, recapitalization, restructuring, liquidation, dissolution or extraordinary transaction involving Seller or any subsidiary of Seller or involving any securities or assets of Seller or any securities 4r assets of any subsidiary of Seller, or (iv) any “solicitation” of “proxies” (as those terms are used in the proxy rules of the Securities and Exchange Commission) or consents with respect to any securities of Seller or any subsidiary of Seller;
(b) form, join or participate in a “group” (as defined in the Securities Exchange Act of 1934 and the rules promulgated thereunder) with respect to the beneficial ownership of any securities of Seller or any subsidiary of Seller;
(c) act, alone or in concert with others, to seek to control or influence the management, board of directors or policies of Seller or any subsidiary of Seller;
(d) take any action that might require Seller to make a public announcement regarding any of the types of matters set forth in clause (a) of this Section 7;
(e) agree or offer to take, or encourage or propose (publicly or otherwise) the taking of, any action referred to in clause (a), (b), (c) or (d) of this Section 7;
(f) assist, induce or encourage any other Person to take any action of the type referred to in clause (a), (b), (c), (d) or (e) of this Section 7;
(g) enter into any discussions, negotiations, arrangement or agreement with any other Person relating to any of the foregoing; or
(h) request or propose that Seller or any of Seller’s Representatives amend, waive or consider the amendment or waiver of any provision set forth in this Section 7;
provided that Buyer shall not be prohibited from making or discussing any offers in a confidential, non-public manner that does not violate sub-clause (d) above regarding the Transaction directly to or with the management or the Board of Directors of Seller, or their designated Representatives (provided that the contents, subject and existence of any such communications shall constitute Confidential Information hereunder).
The standstill provisions of this Section 7 shall not apply to the Parties’ entry into or consummation of the transactions contemplated by a Definitive Agreement. The standstill provisions of this Section 7 shall not apply in the event that, without any violation of the standstill provision, (1) any third party unrelated to Buyer has made any public announcement of its intent to commence a tender offer or exchange offer for more than 50% of the capital stock of Seller, (ii) Seller publicly announces that it has entered into a definitive agreement for a transaction or series of transactions (whether structured as a tender offer, exchange offer, merger, business combination, sale of assets or other similar transaction) that, if consummated, would result in a sale of more than 50% of the capital stock of Seller or a sale of all or substantially all of the assets of Seller, or (iii) any third party unrelated to Buyer commences, or makes a public announcement of its intention to commence, a proxy contest or proxy solicitation with respect to the election of, or enters into an agreement, commitment or understanding with respect to the replacement or addition of, members of the Board of Directors of the Seller such that a majority of the Board of Directors of Seller would be designated by such third party. The standstill provisions of this Section 7 shall automatically become applicable again if the third party announces its intent not to proceed with the proposed transaction described in Section 7(a) above; provided, however, that the Standstill Period shall not be extended beyond its original term. The expiration of the Standstill Period will not terminate or otherwise affect any of the other provisions of this letter agreement.
8. No Obligation to Pursue Transaction. Unless the Parties enter into a Definitive Agreement, no agreement providing for a transaction involving either of the Parties will be deemed to exist between the Parties, and neither Party will be under any obligation to negotiate or enter into any such agreement or transaction with the other Party. Each Party recognizes that, except as expressly provided in any legally binding written agreement between the Parties that is executed on or after the date of this Agreement: (i) the other Party and its Representatives will be free to negotiate with, and to enter into any agreement or transaction with, any other interested party; and (ii) such Party will not have any rights or claims against the other Party or any of the other Party’s Representatives arising out of or relating to any transaction or proposed transaction involving the other Party.
9. No Waiver. No failure or delay by either Party or any of its Representatives in exercising any right, power or privilege under this Agreement will operate as a waiver thereof, and no single or partial exercise of any such right, power or privilege will preclude any other or future exercise thereof or the exercise of any other right, power or privilege under this Agreement. No provision of this Agreement can be waived or amended except by means of a written instrument that is validly executed on behalf of both of the Parties and that refers specifically to the particular provision or provisions being waived or amended.
10. Remedies. Each Party acknowledges that money damages would not be a sufficient remedy for any breach of this Agreement by such Party or by any of such Party’s Representatives and that the other Party would suffer irreparable harm as a result of any such breach. Accordingly, each Party will also be entitled to equitable relief, including injunction and specific performance, as a remedy for any breach or threatened breach of this Agreement by the other Party or any of the other Party’s Representatives (without the need for posting a bond or providing other security). The equitable remedies referred to above will not be deemed to be the exclusive remedies for a breach of this Agreement, but rather will be in addition to all other remedies available at law or in equity to the Parties.
11. Successors and Assigns; Applicable Law; Jurisdiction and Venue. This Agreement will be binding upon and inure to the benefit of each Party and its Representatives and their respective heirs, successors and assigns. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware (without giving effect to principles of conflicts of laws). Each Party: (a) irrevocably and unconditionally consents and submits to the jurisdiction of the state and federal courts located in the State of Delaware for purposes of any action, suit or proceeding arising out of or relating to this Agreement; (b) irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of or relating to this Agreement in any state or federal court located in the State of Delaware; and (c) irrevocably and unconditionally waives the right to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any action, suit or proceeding arising out of or relating to this Agreement that is brought in any state or federal court located in the State of Delaware has been brought in an inconvenient forum.
12. Confidential Information. For purposes of this Agreement, the Provider’s “Confidential Information” will be deemed to include only the following:
(a) any information (including any technology, know-how, patent application, test result, research study, business plan, budget, forecast or projection) relating directly or indirectly to the business of the Provider, any predecessor entity or any subsidiary or other affiliate of the Provider (whether prepared by the Provider or by any other Person and whether or not in written form) that is or that has, within the last thirty (30) days, been made available to the Recipient or any Representative of the Recipient by or on behalf of the Provider or any Representative of the Provider;
(b) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that is or has been prepared by or for the Recipient or any Representative of the Recipient and that contains, reflects, interprets or is based directly or indirectly upon any information of the type referred to in clause (a) of this Section 12;
(c) the existence and terms of this Agreement, and the fact that information of the type referred to in clause (a) of this Section 12 has been made available to the Recipient or any of its Representatives; and
(d) the fact that discussions or negotiations are or may be taking place with respect to a Transaction involving the Parties, and the proposed terms of any such transaction.
However, the Provider’s “Confidential Information” will not be deemed to include:
(i) any information that is or becomes generally available to the public other than as a direct or indirect result of the disclosure of any of such information by the Recipient or by any of the Recipient’s Representatives;
(ii) any information that was in the Recipient’s possession prior to the time it was first made available to the Recipient or any of the Recipient’s Representatives by or on behalf of the Provider or any of the Provider’s Representatives, provided that the source of such information was not and is not reasonably known to the Recipient to be bound by any contractual or other obligation of confidentiality to the Provider or to any other Person with respect to any of such information;
(iii) any information that becomes available to the Recipient on a non-confidential basis from a source other than the Provider or any of the Provider’s Representatives, provided that such source is not reasonably known to the Recipient to be bound by any contractual or other obligation of confidentiality to the Provider or to any other Person with respect to any of such information; or
(iv) any information that is developed by or on behalf of the Recipient independently of the disclosure of Confidential Information and without reference to or use of Confidential Information.
13. Miscellaneous.
(a) For purposes of this Agreement, a Party’s “Representatives” will be deemed to include each Person that is or becomes (i) a subsidiary or other affiliate of such Party, or (ii) an officer, director, employee, partner, attorney, advisor, accountant, agent or representative of such Party or of any of such Party’s subsidiaries or other affiliates.
(b) The term “Person,” as used in this Agreement, will be broadly interpreted to include any individual and any corporation, partnership, entity, group, tribunal or governmental authority.
(c) Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction.
(d) By making Confidential Information or other information available to the Recipient or the Recipient’s Representatives, the Provider is not, and shall not be deemed to be, granting (expressly or by implication) any license or other right under or with respect to any patent, trade secret, copyright, trademark or other proprietary or intellectual property right. Neither the Recipient nor the Recipient’s Representatives shall file any patent application containing any claim to any subject matter derived from the Confidential Information of the Provider.
(e) To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client privilege, work product doctrine or any other applicable privilege or doctrine concerning any Confidential Information or any pending, threatened or prospective action, suit, proceeding, investigation, arbitration or dispute, (i) Provider, or the applicable direct or indirect subsidiary of Provider, is not waiving and shall not be deemed to have waived or diminished its attorney-client privileges, work-product protections, or other applicable privileges or doctrines as a result of disclosing any Confidential Information (including Confidential Information related to pending or threatened litigation) and (ii) it is acknowledged and agreed that the Parties have a commonality of interest with respect to such Confidential Information or action, suit, proceeding, investigation, arbitration or dispute and that it is the Parties’ mutual desire, intention and understanding that the sharing of such materials and other information is not intended to, and shall not, affect the confidentiality of any of such materials or other information or waive or diminish the continued protection of any of such materials or other information under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine. Accordingly, all Confidential Information that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine shall remain entitled to protection thereunder and shall be entitled to protection under the joint defense doctrine, and the Parties agree to take all measures necessary to preserve, to the fullest extent possible, the applicability of all such privileges or doctrines.
(f) This Agreement constitutes the entire agreement between the Recipient and the Provider regarding the subject matter hereof and supersedes any prior agreement between the Recipient and the Provider regarding the subject matter hereof.
(g) This Agreement will terminate 12 months from the effective date of this Agreement, unless earlier terminated by either Party at any time upon 30 days written notice to the other Party. The termination of this Agreement shall not relieve the Recipient of the obligations hereunder with respect to Confidential Information of the Provider (which shall survive any such termination and continue for a period of three years from the effective date of this Agreement, provided that such obligations with respect to any trade secrets of the Provider will survive indefinitely), or relieve either party of its obligations under Section 6 of this Agreement or relieve Buyer of its obligations under Section 7 of this Agreement (which shall survive for the stated durations thereof), and the provisions of Sections 3, 5, 8, 9, 10, 11 and 13 shall remain in full force and effect and survive any termination of this Agreement.
(h) The Recipient agrees not to export, directly or indirectly, any U.S. source technical data acquired from the Provider or any products utilizing such data to countries outside the United States, which export may be in violation of the United States export laws or regulations.
(i) The Parties hereto confirm their agreement that this Agreement, as well as any amendment hereto and all other documents related hereto, including legal notices, shall be in the English language only.
[Signature Page Next]
ARMO BIOSCIENCES, INC. ELI LILLY AND COMPANY
By: /s/ Peter Van Vlasselaer By: /s/ Timothy C. Dolan
Title: CEO Title: V.P., Business Development
Address: 575 Chesapeake Dr. Address: Lilly Corporate Center
Redwood City, CA 94063 Indianapolis, IN
| Not mentioned |
624_nda-8 | 624_nda-8_0 | Q: Receiving Party shall notify Disclosing Party in case Receiving Party is required by law, regulation or judicial process to disclose any Confidential Information.
Text: Exhibit (d)(3)
NON-DISCLOSURE AGREEMENT
This NON-DISCLOSURE AGREEMENT (“Agreement”) is being entered into as of March 19, 2018 between ARMO Biosciences, Inc., a Delaware corporation (“Seller”), and Eli Lilly and Company, an Indiana corporation (“Buyer” and with Seller referred to collectively as the “Parties” and individually as a “Party”).
In order to facilitate the consideration and negotiation of a possible negotiated transaction involving Buyer’s acquisition of all of the equity interests in Seller (a “Transaction”), each Party has either requested or may request access to certain non-public information regarding the other Party and the other Party’s subsidiaries. (Each Party, in its capacity as a provider of information, is referred to in this Agreement as the “Provider”; and each Party, in its capacity as a recipient of information, is referred to in this Agreement as the “Recipient”.) This Agreement sets forth the Parties’ obligations regarding the use and disclosure of such information and regarding various related matters.
The Parties, intending to be legally bound, acknowledge and agree as follows:
1. Limitations on Use and Disclosure of Confidential Information. Neither the Recipient nor any of the Recipient’s Representatives (as defined in Section 13 below) will, at any time, directly or indirectly:
(a) make use of any of the Provider’s Confidential Information (as defined in Section 12 below), except for the specific purpose of considering, evaluating and negotiating a Transaction between the Parties; or
(b) subject to Section 4 below, disclose any of the Provider’s Confidential Information to any other Person (as defined in Section 13 below).
The Recipient will be liable and responsible for any breach of this Agreement by any of its Representatives and for any other action or conduct on the part of any of its Representatives that is inconsistent with any provision of this Agreement. The Recipient will (at its own expense) take all reasonable actions necessary to restrain its Representatives from making any unauthorized use or disclosure of any of the Provider’s Confidential Information.
2. Provider Contact Person. Any request by the Recipient or any of its Representatives to review any of the Provider’s Confidential Information must be directed to the individual(s) identified opposite the name of the Provider on EXHIBIT A (the “Provider Contact Person”). Neither the Recipient nor any of the Recipient’s Representatives will contact or otherwise communicate with any other Representative of the Provider in connection with a Transaction without the prior written authorization of the Provider Contact Person.
3. No Representations by Provider. Neither the Provider nor any of the Provider’s Representatives will be under any obligation to make any particular Confidential Information of the Provider available to the Recipient or any of the Recipient’s Representatives or to supplement or update any Confidential Information of the Provider previously furnished.
Neither the Provider nor any of its Representatives has made or is making any representation or warranty, express or implied, as to the accuracy or completeness of any of the Provider’s Confidential Information, and neither the Provider nor any of its Representatives will have any liability to the Recipient or to any of the Recipient’s Representatives on any basis (including, without limitation, in contract, tort or under United States federal or state securities laws or otherwise) relating to or resulting from the use of any of the Provider’s Confidential Information or any inaccuracies or errors therein or omissions therefrom. Only those representations and warranties that are included in any final definitive written agreement that provides for the consummation of a Transaction between the Parties (a “Definitive Agreement”) will have legal effect.
4. Permitted Disclosures.
(a) Notwithstanding the limitations set forth in Section 1 above:
(i) the Recipient may disclose Confidential Information of the Provider if and to the extent that the Provider consents in writing to the Recipient’s disclosure thereof;
(ii) subject to Section 4(b) below, the Recipient may disclose Confidential Information of the Provider to any Representative of the Recipient, but only to the extent such Representative (A) needs to know such Confidential Information for the purpose of helping the Recipient evaluate or negotiate a Transaction between the Parties, and (B) has been provided with a copy of this Agreement and has agreed to abide and be bound by the provisions hereof or is otherwise bound by confidentiality obligations at least as restrictive as those contained in this Agreement; and
(iii) subject to Section 4(c) below, the Recipient may disclose Confidential Information of the Provider to the extent required by applicable law or governmental regulation or by valid legal process or stock exchange rule.
(b) If the Provider delivers to the Recipient a written notice stating that certain Confidential Information of the Provider may be disclosed only to specified Representatives of the Recipient (such notice, a “Permitted Representatives Notice”), then, notwithstanding anything to the contrary contained in Section 4(a)(ii) above, the Recipient shall not thereafter disclose or permit the disclosure of any of such Confidential Information to any other Representative of the Recipient (any such other Representative, an “Impermissible Representative”). For clarity, if the Recipient disclosed, or permitted the disclosure of, any such certain Confidential Information to an Impermissible Representative prior to the Recipient’s receipt of the Permitted Representatives Notice, such disclosure shall not be deemed a breach of this Agreement.
(c) If the Recipient or any of the Recipient’s Representatives is required by law or governmental regulation or by subpoena or other valid legal process to disclose any of the Provider’s Confidential Information to any Person, then the Recipient will promptly provide the Provider with written notice of the applicable law, regulation or process so that the Provider may seek a protective order or other appropriate remedy. The Recipient and its Representatives will cooperate with the Provider and the Provider’s Representatives (at the Provider’s sole expense) in any attempt by the Provider to obtain any such protective order or other remedy. If the Provider elects not to seek, or is unsuccessful in obtaining, any such protective order or other remedy in connection with any requirement that the Recipient disclose Confidential Information of the Provider, then the Recipient may disclose such Confidential Information to the extent legally required; provided however, that the Recipient and its Representatives will use their reasonable efforts to ensure that such Confidential Information is treated confidentially by each Person to whom it is disclosed.
5. Return of Confidential Information. Upon the Provider’s request, the Recipient and the Recipient’s Representatives will promptly deliver to the Provider any of the Provider’s Confidential Information (and all copies thereof) obtained or possessed by the Recipient or any of the Recipient’s Representatives; provided, however, that, in lieu of delivering such Confidential Information to the Provider, the Recipient may destroy such Confidential Information and deliver to the Provider a certificate confirming their destruction; provided further, that Recipient shall not be required to return or destroy copies of Confidential Information created pursuant to Recipient’s automatic archiving and back-up procedures. Notwithstanding the delivery to the Provider, the destruction by the Recipient or the automatic archiving by Recipient of Confidential Information of the Provider pursuant to this Section 5, the Recipient and its Representatives will continue to be bound by their confidentiality obligations and other obligations under this Agreement with respect to such Confidential Information.
6. Limitation on Soliciting Employees. During the 12 month period commencing on the date of this Agreement, each Party agrees that neither it nor any of its direct or indirect subsidiaries who is or becomes aware of the negotiation of a possible Transaction between the Parties shall solicit for employment any employee of the other Party (or any of such other Party’s direct or indirect subsidiaries) with whom it (or any of its direct or indirect subsidiaries) came into contact in connection with a possible Transaction; provided, however, that this Section 6 will not prevent either Party or its direct or indirect subsidiaries from making generalized searches for employees by causing to be placed any general advertisement or similar notices or engaging search firms, provided that that such searches are not targeted specifically at employees of the other Party or its direct or indirect subsidiaries.
7. Standstill Provision. During the 12 month period commencing on the date of this Agreement (the “Standstill Period”), neither Buyer nor any of Buyer’s subsidiaries or other Representatives on behalf of Buyer will, in any manner, directly or indirectly:
(a) make, effect, initiate, cause or participate in (i) any acquisition of beneficial ownership of any securities of Seller or any securities of any subsidiary of Seller, (ii) any acquisition of any assets of Seller or any assets of any subsidiary of Seller, (iii) any tender offer, exchange offer, merger, business combination, recapitalization, restructuring, liquidation, dissolution or extraordinary transaction involving Seller or any subsidiary of Seller or involving any securities or assets of Seller or any securities 4r assets of any subsidiary of Seller, or (iv) any “solicitation” of “proxies” (as those terms are used in the proxy rules of the Securities and Exchange Commission) or consents with respect to any securities of Seller or any subsidiary of Seller;
(b) form, join or participate in a “group” (as defined in the Securities Exchange Act of 1934 and the rules promulgated thereunder) with respect to the beneficial ownership of any securities of Seller or any subsidiary of Seller;
(c) act, alone or in concert with others, to seek to control or influence the management, board of directors or policies of Seller or any subsidiary of Seller;
(d) take any action that might require Seller to make a public announcement regarding any of the types of matters set forth in clause (a) of this Section 7;
(e) agree or offer to take, or encourage or propose (publicly or otherwise) the taking of, any action referred to in clause (a), (b), (c) or (d) of this Section 7;
(f) assist, induce or encourage any other Person to take any action of the type referred to in clause (a), (b), (c), (d) or (e) of this Section 7;
(g) enter into any discussions, negotiations, arrangement or agreement with any other Person relating to any of the foregoing; or
(h) request or propose that Seller or any of Seller’s Representatives amend, waive or consider the amendment or waiver of any provision set forth in this Section 7;
provided that Buyer shall not be prohibited from making or discussing any offers in a confidential, non-public manner that does not violate sub-clause (d) above regarding the Transaction directly to or with the management or the Board of Directors of Seller, or their designated Representatives (provided that the contents, subject and existence of any such communications shall constitute Confidential Information hereunder).
The standstill provisions of this Section 7 shall not apply to the Parties’ entry into or consummation of the transactions contemplated by a Definitive Agreement. The standstill provisions of this Section 7 shall not apply in the event that, without any violation of the standstill provision, (1) any third party unrelated to Buyer has made any public announcement of its intent to commence a tender offer or exchange offer for more than 50% of the capital stock of Seller, (ii) Seller publicly announces that it has entered into a definitive agreement for a transaction or series of transactions (whether structured as a tender offer, exchange offer, merger, business combination, sale of assets or other similar transaction) that, if consummated, would result in a sale of more than 50% of the capital stock of Seller or a sale of all or substantially all of the assets of Seller, or (iii) any third party unrelated to Buyer commences, or makes a public announcement of its intention to commence, a proxy contest or proxy solicitation with respect to the election of, or enters into an agreement, commitment or understanding with respect to the replacement or addition of, members of the Board of Directors of the Seller such that a majority of the Board of Directors of Seller would be designated by such third party. The standstill provisions of this Section 7 shall automatically become applicable again if the third party announces its intent not to proceed with the proposed transaction described in Section 7(a) above; provided, however, that the Standstill Period shall not be extended beyond its original term. The expiration of the Standstill Period will not terminate or otherwise affect any of the other provisions of this letter agreement.
8. No Obligation to Pursue Transaction. Unless the Parties enter into a Definitive Agreement, no agreement providing for a transaction involving either of the Parties will be deemed to exist between the Parties, and neither Party will be under any obligation to negotiate or enter into any such agreement or transaction with the other Party. Each Party recognizes that, except as expressly provided in any legally binding written agreement between the Parties that is executed on or after the date of this Agreement: (i) the other Party and its Representatives will be free to negotiate with, and to enter into any agreement or transaction with, any other interested party; and (ii) such Party will not have any rights or claims against the other Party or any of the other Party’s Representatives arising out of or relating to any transaction or proposed transaction involving the other Party.
9. No Waiver. No failure or delay by either Party or any of its Representatives in exercising any right, power or privilege under this Agreement will operate as a waiver thereof, and no single or partial exercise of any such right, power or privilege will preclude any other or future exercise thereof or the exercise of any other right, power or privilege under this Agreement. No provision of this Agreement can be waived or amended except by means of a written instrument that is validly executed on behalf of both of the Parties and that refers specifically to the particular provision or provisions being waived or amended.
10. Remedies. Each Party acknowledges that money damages would not be a sufficient remedy for any breach of this Agreement by such Party or by any of such Party’s Representatives and that the other Party would suffer irreparable harm as a result of any such breach. Accordingly, each Party will also be entitled to equitable relief, including injunction and specific performance, as a remedy for any breach or threatened breach of this Agreement by the other Party or any of the other Party’s Representatives (without the need for posting a bond or providing other security). The equitable remedies referred to above will not be deemed to be the exclusive remedies for a breach of this Agreement, but rather will be in addition to all other remedies available at law or in equity to the Parties.
11. Successors and Assigns; Applicable Law; Jurisdiction and Venue. This Agreement will be binding upon and inure to the benefit of each Party and its Representatives and their respective heirs, successors and assigns. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware (without giving effect to principles of conflicts of laws). Each Party: (a) irrevocably and unconditionally consents and submits to the jurisdiction of the state and federal courts located in the State of Delaware for purposes of any action, suit or proceeding arising out of or relating to this Agreement; (b) irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of or relating to this Agreement in any state or federal court located in the State of Delaware; and (c) irrevocably and unconditionally waives the right to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any action, suit or proceeding arising out of or relating to this Agreement that is brought in any state or federal court located in the State of Delaware has been brought in an inconvenient forum.
12. Confidential Information. For purposes of this Agreement, the Provider’s “Confidential Information” will be deemed to include only the following:
(a) any information (including any technology, know-how, patent application, test result, research study, business plan, budget, forecast or projection) relating directly or indirectly to the business of the Provider, any predecessor entity or any subsidiary or other affiliate of the Provider (whether prepared by the Provider or by any other Person and whether or not in written form) that is or that has, within the last thirty (30) days, been made available to the Recipient or any Representative of the Recipient by or on behalf of the Provider or any Representative of the Provider;
(b) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that is or has been prepared by or for the Recipient or any Representative of the Recipient and that contains, reflects, interprets or is based directly or indirectly upon any information of the type referred to in clause (a) of this Section 12;
(c) the existence and terms of this Agreement, and the fact that information of the type referred to in clause (a) of this Section 12 has been made available to the Recipient or any of its Representatives; and
(d) the fact that discussions or negotiations are or may be taking place with respect to a Transaction involving the Parties, and the proposed terms of any such transaction.
However, the Provider’s “Confidential Information” will not be deemed to include:
(i) any information that is or becomes generally available to the public other than as a direct or indirect result of the disclosure of any of such information by the Recipient or by any of the Recipient’s Representatives;
(ii) any information that was in the Recipient’s possession prior to the time it was first made available to the Recipient or any of the Recipient’s Representatives by or on behalf of the Provider or any of the Provider’s Representatives, provided that the source of such information was not and is not reasonably known to the Recipient to be bound by any contractual or other obligation of confidentiality to the Provider or to any other Person with respect to any of such information;
(iii) any information that becomes available to the Recipient on a non-confidential basis from a source other than the Provider or any of the Provider’s Representatives, provided that such source is not reasonably known to the Recipient to be bound by any contractual or other obligation of confidentiality to the Provider or to any other Person with respect to any of such information; or
(iv) any information that is developed by or on behalf of the Recipient independently of the disclosure of Confidential Information and without reference to or use of Confidential Information.
13. Miscellaneous.
(a) For purposes of this Agreement, a Party’s “Representatives” will be deemed to include each Person that is or becomes (i) a subsidiary or other affiliate of such Party, or (ii) an officer, director, employee, partner, attorney, advisor, accountant, agent or representative of such Party or of any of such Party’s subsidiaries or other affiliates.
(b) The term “Person,” as used in this Agreement, will be broadly interpreted to include any individual and any corporation, partnership, entity, group, tribunal or governmental authority.
(c) Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction.
(d) By making Confidential Information or other information available to the Recipient or the Recipient’s Representatives, the Provider is not, and shall not be deemed to be, granting (expressly or by implication) any license or other right under or with respect to any patent, trade secret, copyright, trademark or other proprietary or intellectual property right. Neither the Recipient nor the Recipient’s Representatives shall file any patent application containing any claim to any subject matter derived from the Confidential Information of the Provider.
(e) To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client privilege, work product doctrine or any other applicable privilege or doctrine concerning any Confidential Information or any pending, threatened or prospective action, suit, proceeding, investigation, arbitration or dispute, (i) Provider, or the applicable direct or indirect subsidiary of Provider, is not waiving and shall not be deemed to have waived or diminished its attorney-client privileges, work-product protections, or other applicable privileges or doctrines as a result of disclosing any Confidential Information (including Confidential Information related to pending or threatened litigation) and (ii) it is acknowledged and agreed that the Parties have a commonality of interest with respect to such Confidential Information or action, suit, proceeding, investigation, arbitration or dispute and that it is the Parties’ mutual desire, intention and understanding that the sharing of such materials and other information is not intended to, and shall not, affect the confidentiality of any of such materials or other information or waive or diminish the continued protection of any of such materials or other information under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine. Accordingly, all Confidential Information that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine shall remain entitled to protection thereunder and shall be entitled to protection under the joint defense doctrine, and the Parties agree to take all measures necessary to preserve, to the fullest extent possible, the applicability of all such privileges or doctrines.
(f) This Agreement constitutes the entire agreement between the Recipient and the Provider regarding the subject matter hereof and supersedes any prior agreement between the Recipient and the Provider regarding the subject matter hereof.
(g) This Agreement will terminate 12 months from the effective date of this Agreement, unless earlier terminated by either Party at any time upon 30 days written notice to the other Party. The termination of this Agreement shall not relieve the Recipient of the obligations hereunder with respect to Confidential Information of the Provider (which shall survive any such termination and continue for a period of three years from the effective date of this Agreement, provided that such obligations with respect to any trade secrets of the Provider will survive indefinitely), or relieve either party of its obligations under Section 6 of this Agreement or relieve Buyer of its obligations under Section 7 of this Agreement (which shall survive for the stated durations thereof), and the provisions of Sections 3, 5, 8, 9, 10, 11 and 13 shall remain in full force and effect and survive any termination of this Agreement.
(h) The Recipient agrees not to export, directly or indirectly, any U.S. source technical data acquired from the Provider or any products utilizing such data to countries outside the United States, which export may be in violation of the United States export laws or regulations.
(i) The Parties hereto confirm their agreement that this Agreement, as well as any amendment hereto and all other documents related hereto, including legal notices, shall be in the English language only.
[Signature Page Next]
ARMO BIOSCIENCES, INC. ELI LILLY AND COMPANY
By: /s/ Peter Van Vlasselaer By: /s/ Timothy C. Dolan
Title: CEO Title: V.P., Business Development
Address: 575 Chesapeake Dr. Address: Lilly Corporate Center
Redwood City, CA 94063 Indianapolis, IN
| Entailment |
624_nda-13 | 624_nda-13_0 | Q: Receiving Party may acquire information similar to Confidential Information from a third party.
Text: Exhibit (d)(3)
NON-DISCLOSURE AGREEMENT
This NON-DISCLOSURE AGREEMENT (“Agreement”) is being entered into as of March 19, 2018 between ARMO Biosciences, Inc., a Delaware corporation (“Seller”), and Eli Lilly and Company, an Indiana corporation (“Buyer” and with Seller referred to collectively as the “Parties” and individually as a “Party”).
In order to facilitate the consideration and negotiation of a possible negotiated transaction involving Buyer’s acquisition of all of the equity interests in Seller (a “Transaction”), each Party has either requested or may request access to certain non-public information regarding the other Party and the other Party’s subsidiaries. (Each Party, in its capacity as a provider of information, is referred to in this Agreement as the “Provider”; and each Party, in its capacity as a recipient of information, is referred to in this Agreement as the “Recipient”.) This Agreement sets forth the Parties’ obligations regarding the use and disclosure of such information and regarding various related matters.
The Parties, intending to be legally bound, acknowledge and agree as follows:
1. Limitations on Use and Disclosure of Confidential Information. Neither the Recipient nor any of the Recipient’s Representatives (as defined in Section 13 below) will, at any time, directly or indirectly:
(a) make use of any of the Provider’s Confidential Information (as defined in Section 12 below), except for the specific purpose of considering, evaluating and negotiating a Transaction between the Parties; or
(b) subject to Section 4 below, disclose any of the Provider’s Confidential Information to any other Person (as defined in Section 13 below).
The Recipient will be liable and responsible for any breach of this Agreement by any of its Representatives and for any other action or conduct on the part of any of its Representatives that is inconsistent with any provision of this Agreement. The Recipient will (at its own expense) take all reasonable actions necessary to restrain its Representatives from making any unauthorized use or disclosure of any of the Provider’s Confidential Information.
2. Provider Contact Person. Any request by the Recipient or any of its Representatives to review any of the Provider’s Confidential Information must be directed to the individual(s) identified opposite the name of the Provider on EXHIBIT A (the “Provider Contact Person”). Neither the Recipient nor any of the Recipient’s Representatives will contact or otherwise communicate with any other Representative of the Provider in connection with a Transaction without the prior written authorization of the Provider Contact Person.
3. No Representations by Provider. Neither the Provider nor any of the Provider’s Representatives will be under any obligation to make any particular Confidential Information of the Provider available to the Recipient or any of the Recipient’s Representatives or to supplement or update any Confidential Information of the Provider previously furnished.
Neither the Provider nor any of its Representatives has made or is making any representation or warranty, express or implied, as to the accuracy or completeness of any of the Provider’s Confidential Information, and neither the Provider nor any of its Representatives will have any liability to the Recipient or to any of the Recipient’s Representatives on any basis (including, without limitation, in contract, tort or under United States federal or state securities laws or otherwise) relating to or resulting from the use of any of the Provider’s Confidential Information or any inaccuracies or errors therein or omissions therefrom. Only those representations and warranties that are included in any final definitive written agreement that provides for the consummation of a Transaction between the Parties (a “Definitive Agreement”) will have legal effect.
4. Permitted Disclosures.
(a) Notwithstanding the limitations set forth in Section 1 above:
(i) the Recipient may disclose Confidential Information of the Provider if and to the extent that the Provider consents in writing to the Recipient’s disclosure thereof;
(ii) subject to Section 4(b) below, the Recipient may disclose Confidential Information of the Provider to any Representative of the Recipient, but only to the extent such Representative (A) needs to know such Confidential Information for the purpose of helping the Recipient evaluate or negotiate a Transaction between the Parties, and (B) has been provided with a copy of this Agreement and has agreed to abide and be bound by the provisions hereof or is otherwise bound by confidentiality obligations at least as restrictive as those contained in this Agreement; and
(iii) subject to Section 4(c) below, the Recipient may disclose Confidential Information of the Provider to the extent required by applicable law or governmental regulation or by valid legal process or stock exchange rule.
(b) If the Provider delivers to the Recipient a written notice stating that certain Confidential Information of the Provider may be disclosed only to specified Representatives of the Recipient (such notice, a “Permitted Representatives Notice”), then, notwithstanding anything to the contrary contained in Section 4(a)(ii) above, the Recipient shall not thereafter disclose or permit the disclosure of any of such Confidential Information to any other Representative of the Recipient (any such other Representative, an “Impermissible Representative”). For clarity, if the Recipient disclosed, or permitted the disclosure of, any such certain Confidential Information to an Impermissible Representative prior to the Recipient’s receipt of the Permitted Representatives Notice, such disclosure shall not be deemed a breach of this Agreement.
(c) If the Recipient or any of the Recipient’s Representatives is required by law or governmental regulation or by subpoena or other valid legal process to disclose any of the Provider’s Confidential Information to any Person, then the Recipient will promptly provide the Provider with written notice of the applicable law, regulation or process so that the Provider may seek a protective order or other appropriate remedy. The Recipient and its Representatives will cooperate with the Provider and the Provider’s Representatives (at the Provider’s sole expense) in any attempt by the Provider to obtain any such protective order or other remedy. If the Provider elects not to seek, or is unsuccessful in obtaining, any such protective order or other remedy in connection with any requirement that the Recipient disclose Confidential Information of the Provider, then the Recipient may disclose such Confidential Information to the extent legally required; provided however, that the Recipient and its Representatives will use their reasonable efforts to ensure that such Confidential Information is treated confidentially by each Person to whom it is disclosed.
5. Return of Confidential Information. Upon the Provider’s request, the Recipient and the Recipient’s Representatives will promptly deliver to the Provider any of the Provider’s Confidential Information (and all copies thereof) obtained or possessed by the Recipient or any of the Recipient’s Representatives; provided, however, that, in lieu of delivering such Confidential Information to the Provider, the Recipient may destroy such Confidential Information and deliver to the Provider a certificate confirming their destruction; provided further, that Recipient shall not be required to return or destroy copies of Confidential Information created pursuant to Recipient’s automatic archiving and back-up procedures. Notwithstanding the delivery to the Provider, the destruction by the Recipient or the automatic archiving by Recipient of Confidential Information of the Provider pursuant to this Section 5, the Recipient and its Representatives will continue to be bound by their confidentiality obligations and other obligations under this Agreement with respect to such Confidential Information.
6. Limitation on Soliciting Employees. During the 12 month period commencing on the date of this Agreement, each Party agrees that neither it nor any of its direct or indirect subsidiaries who is or becomes aware of the negotiation of a possible Transaction between the Parties shall solicit for employment any employee of the other Party (or any of such other Party’s direct or indirect subsidiaries) with whom it (or any of its direct or indirect subsidiaries) came into contact in connection with a possible Transaction; provided, however, that this Section 6 will not prevent either Party or its direct or indirect subsidiaries from making generalized searches for employees by causing to be placed any general advertisement or similar notices or engaging search firms, provided that that such searches are not targeted specifically at employees of the other Party or its direct or indirect subsidiaries.
7. Standstill Provision. During the 12 month period commencing on the date of this Agreement (the “Standstill Period”), neither Buyer nor any of Buyer’s subsidiaries or other Representatives on behalf of Buyer will, in any manner, directly or indirectly:
(a) make, effect, initiate, cause or participate in (i) any acquisition of beneficial ownership of any securities of Seller or any securities of any subsidiary of Seller, (ii) any acquisition of any assets of Seller or any assets of any subsidiary of Seller, (iii) any tender offer, exchange offer, merger, business combination, recapitalization, restructuring, liquidation, dissolution or extraordinary transaction involving Seller or any subsidiary of Seller or involving any securities or assets of Seller or any securities 4r assets of any subsidiary of Seller, or (iv) any “solicitation” of “proxies” (as those terms are used in the proxy rules of the Securities and Exchange Commission) or consents with respect to any securities of Seller or any subsidiary of Seller;
(b) form, join or participate in a “group” (as defined in the Securities Exchange Act of 1934 and the rules promulgated thereunder) with respect to the beneficial ownership of any securities of Seller or any subsidiary of Seller;
(c) act, alone or in concert with others, to seek to control or influence the management, board of directors or policies of Seller or any subsidiary of Seller;
(d) take any action that might require Seller to make a public announcement regarding any of the types of matters set forth in clause (a) of this Section 7;
(e) agree or offer to take, or encourage or propose (publicly or otherwise) the taking of, any action referred to in clause (a), (b), (c) or (d) of this Section 7;
(f) assist, induce or encourage any other Person to take any action of the type referred to in clause (a), (b), (c), (d) or (e) of this Section 7;
(g) enter into any discussions, negotiations, arrangement or agreement with any other Person relating to any of the foregoing; or
(h) request or propose that Seller or any of Seller’s Representatives amend, waive or consider the amendment or waiver of any provision set forth in this Section 7;
provided that Buyer shall not be prohibited from making or discussing any offers in a confidential, non-public manner that does not violate sub-clause (d) above regarding the Transaction directly to or with the management or the Board of Directors of Seller, or their designated Representatives (provided that the contents, subject and existence of any such communications shall constitute Confidential Information hereunder).
The standstill provisions of this Section 7 shall not apply to the Parties’ entry into or consummation of the transactions contemplated by a Definitive Agreement. The standstill provisions of this Section 7 shall not apply in the event that, without any violation of the standstill provision, (1) any third party unrelated to Buyer has made any public announcement of its intent to commence a tender offer or exchange offer for more than 50% of the capital stock of Seller, (ii) Seller publicly announces that it has entered into a definitive agreement for a transaction or series of transactions (whether structured as a tender offer, exchange offer, merger, business combination, sale of assets or other similar transaction) that, if consummated, would result in a sale of more than 50% of the capital stock of Seller or a sale of all or substantially all of the assets of Seller, or (iii) any third party unrelated to Buyer commences, or makes a public announcement of its intention to commence, a proxy contest or proxy solicitation with respect to the election of, or enters into an agreement, commitment or understanding with respect to the replacement or addition of, members of the Board of Directors of the Seller such that a majority of the Board of Directors of Seller would be designated by such third party. The standstill provisions of this Section 7 shall automatically become applicable again if the third party announces its intent not to proceed with the proposed transaction described in Section 7(a) above; provided, however, that the Standstill Period shall not be extended beyond its original term. The expiration of the Standstill Period will not terminate or otherwise affect any of the other provisions of this letter agreement.
8. No Obligation to Pursue Transaction. Unless the Parties enter into a Definitive Agreement, no agreement providing for a transaction involving either of the Parties will be deemed to exist between the Parties, and neither Party will be under any obligation to negotiate or enter into any such agreement or transaction with the other Party. Each Party recognizes that, except as expressly provided in any legally binding written agreement between the Parties that is executed on or after the date of this Agreement: (i) the other Party and its Representatives will be free to negotiate with, and to enter into any agreement or transaction with, any other interested party; and (ii) such Party will not have any rights or claims against the other Party or any of the other Party’s Representatives arising out of or relating to any transaction or proposed transaction involving the other Party.
9. No Waiver. No failure or delay by either Party or any of its Representatives in exercising any right, power or privilege under this Agreement will operate as a waiver thereof, and no single or partial exercise of any such right, power or privilege will preclude any other or future exercise thereof or the exercise of any other right, power or privilege under this Agreement. No provision of this Agreement can be waived or amended except by means of a written instrument that is validly executed on behalf of both of the Parties and that refers specifically to the particular provision or provisions being waived or amended.
10. Remedies. Each Party acknowledges that money damages would not be a sufficient remedy for any breach of this Agreement by such Party or by any of such Party’s Representatives and that the other Party would suffer irreparable harm as a result of any such breach. Accordingly, each Party will also be entitled to equitable relief, including injunction and specific performance, as a remedy for any breach or threatened breach of this Agreement by the other Party or any of the other Party’s Representatives (without the need for posting a bond or providing other security). The equitable remedies referred to above will not be deemed to be the exclusive remedies for a breach of this Agreement, but rather will be in addition to all other remedies available at law or in equity to the Parties.
11. Successors and Assigns; Applicable Law; Jurisdiction and Venue. This Agreement will be binding upon and inure to the benefit of each Party and its Representatives and their respective heirs, successors and assigns. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware (without giving effect to principles of conflicts of laws). Each Party: (a) irrevocably and unconditionally consents and submits to the jurisdiction of the state and federal courts located in the State of Delaware for purposes of any action, suit or proceeding arising out of or relating to this Agreement; (b) irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of or relating to this Agreement in any state or federal court located in the State of Delaware; and (c) irrevocably and unconditionally waives the right to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any action, suit or proceeding arising out of or relating to this Agreement that is brought in any state or federal court located in the State of Delaware has been brought in an inconvenient forum.
12. Confidential Information. For purposes of this Agreement, the Provider’s “Confidential Information” will be deemed to include only the following:
(a) any information (including any technology, know-how, patent application, test result, research study, business plan, budget, forecast or projection) relating directly or indirectly to the business of the Provider, any predecessor entity or any subsidiary or other affiliate of the Provider (whether prepared by the Provider or by any other Person and whether or not in written form) that is or that has, within the last thirty (30) days, been made available to the Recipient or any Representative of the Recipient by or on behalf of the Provider or any Representative of the Provider;
(b) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that is or has been prepared by or for the Recipient or any Representative of the Recipient and that contains, reflects, interprets or is based directly or indirectly upon any information of the type referred to in clause (a) of this Section 12;
(c) the existence and terms of this Agreement, and the fact that information of the type referred to in clause (a) of this Section 12 has been made available to the Recipient or any of its Representatives; and
(d) the fact that discussions or negotiations are or may be taking place with respect to a Transaction involving the Parties, and the proposed terms of any such transaction.
However, the Provider’s “Confidential Information” will not be deemed to include:
(i) any information that is or becomes generally available to the public other than as a direct or indirect result of the disclosure of any of such information by the Recipient or by any of the Recipient’s Representatives;
(ii) any information that was in the Recipient’s possession prior to the time it was first made available to the Recipient or any of the Recipient’s Representatives by or on behalf of the Provider or any of the Provider’s Representatives, provided that the source of such information was not and is not reasonably known to the Recipient to be bound by any contractual or other obligation of confidentiality to the Provider or to any other Person with respect to any of such information;
(iii) any information that becomes available to the Recipient on a non-confidential basis from a source other than the Provider or any of the Provider’s Representatives, provided that such source is not reasonably known to the Recipient to be bound by any contractual or other obligation of confidentiality to the Provider or to any other Person with respect to any of such information; or
(iv) any information that is developed by or on behalf of the Recipient independently of the disclosure of Confidential Information and without reference to or use of Confidential Information.
13. Miscellaneous.
(a) For purposes of this Agreement, a Party’s “Representatives” will be deemed to include each Person that is or becomes (i) a subsidiary or other affiliate of such Party, or (ii) an officer, director, employee, partner, attorney, advisor, accountant, agent or representative of such Party or of any of such Party’s subsidiaries or other affiliates.
(b) The term “Person,” as used in this Agreement, will be broadly interpreted to include any individual and any corporation, partnership, entity, group, tribunal or governmental authority.
(c) Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction.
(d) By making Confidential Information or other information available to the Recipient or the Recipient’s Representatives, the Provider is not, and shall not be deemed to be, granting (expressly or by implication) any license or other right under or with respect to any patent, trade secret, copyright, trademark or other proprietary or intellectual property right. Neither the Recipient nor the Recipient’s Representatives shall file any patent application containing any claim to any subject matter derived from the Confidential Information of the Provider.
(e) To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client privilege, work product doctrine or any other applicable privilege or doctrine concerning any Confidential Information or any pending, threatened or prospective action, suit, proceeding, investigation, arbitration or dispute, (i) Provider, or the applicable direct or indirect subsidiary of Provider, is not waiving and shall not be deemed to have waived or diminished its attorney-client privileges, work-product protections, or other applicable privileges or doctrines as a result of disclosing any Confidential Information (including Confidential Information related to pending or threatened litigation) and (ii) it is acknowledged and agreed that the Parties have a commonality of interest with respect to such Confidential Information or action, suit, proceeding, investigation, arbitration or dispute and that it is the Parties’ mutual desire, intention and understanding that the sharing of such materials and other information is not intended to, and shall not, affect the confidentiality of any of such materials or other information or waive or diminish the continued protection of any of such materials or other information under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine. Accordingly, all Confidential Information that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine shall remain entitled to protection thereunder and shall be entitled to protection under the joint defense doctrine, and the Parties agree to take all measures necessary to preserve, to the fullest extent possible, the applicability of all such privileges or doctrines.
(f) This Agreement constitutes the entire agreement between the Recipient and the Provider regarding the subject matter hereof and supersedes any prior agreement between the Recipient and the Provider regarding the subject matter hereof.
(g) This Agreement will terminate 12 months from the effective date of this Agreement, unless earlier terminated by either Party at any time upon 30 days written notice to the other Party. The termination of this Agreement shall not relieve the Recipient of the obligations hereunder with respect to Confidential Information of the Provider (which shall survive any such termination and continue for a period of three years from the effective date of this Agreement, provided that such obligations with respect to any trade secrets of the Provider will survive indefinitely), or relieve either party of its obligations under Section 6 of this Agreement or relieve Buyer of its obligations under Section 7 of this Agreement (which shall survive for the stated durations thereof), and the provisions of Sections 3, 5, 8, 9, 10, 11 and 13 shall remain in full force and effect and survive any termination of this Agreement.
(h) The Recipient agrees not to export, directly or indirectly, any U.S. source technical data acquired from the Provider or any products utilizing such data to countries outside the United States, which export may be in violation of the United States export laws or regulations.
(i) The Parties hereto confirm their agreement that this Agreement, as well as any amendment hereto and all other documents related hereto, including legal notices, shall be in the English language only.
[Signature Page Next]
ARMO BIOSCIENCES, INC. ELI LILLY AND COMPANY
By: /s/ Peter Van Vlasselaer By: /s/ Timothy C. Dolan
Title: CEO Title: V.P., Business Development
Address: 575 Chesapeake Dr. Address: Lilly Corporate Center
Redwood City, CA 94063 Indianapolis, IN
| Entailment |
624_nda-5 | 624_nda-5_0 | Q: Receiving Party may share some Confidential Information with some of Receiving Party's employees.
Text: Exhibit (d)(3)
NON-DISCLOSURE AGREEMENT
This NON-DISCLOSURE AGREEMENT (“Agreement”) is being entered into as of March 19, 2018 between ARMO Biosciences, Inc., a Delaware corporation (“Seller”), and Eli Lilly and Company, an Indiana corporation (“Buyer” and with Seller referred to collectively as the “Parties” and individually as a “Party”).
In order to facilitate the consideration and negotiation of a possible negotiated transaction involving Buyer’s acquisition of all of the equity interests in Seller (a “Transaction”), each Party has either requested or may request access to certain non-public information regarding the other Party and the other Party’s subsidiaries. (Each Party, in its capacity as a provider of information, is referred to in this Agreement as the “Provider”; and each Party, in its capacity as a recipient of information, is referred to in this Agreement as the “Recipient”.) This Agreement sets forth the Parties’ obligations regarding the use and disclosure of such information and regarding various related matters.
The Parties, intending to be legally bound, acknowledge and agree as follows:
1. Limitations on Use and Disclosure of Confidential Information. Neither the Recipient nor any of the Recipient’s Representatives (as defined in Section 13 below) will, at any time, directly or indirectly:
(a) make use of any of the Provider’s Confidential Information (as defined in Section 12 below), except for the specific purpose of considering, evaluating and negotiating a Transaction between the Parties; or
(b) subject to Section 4 below, disclose any of the Provider’s Confidential Information to any other Person (as defined in Section 13 below).
The Recipient will be liable and responsible for any breach of this Agreement by any of its Representatives and for any other action or conduct on the part of any of its Representatives that is inconsistent with any provision of this Agreement. The Recipient will (at its own expense) take all reasonable actions necessary to restrain its Representatives from making any unauthorized use or disclosure of any of the Provider’s Confidential Information.
2. Provider Contact Person. Any request by the Recipient or any of its Representatives to review any of the Provider’s Confidential Information must be directed to the individual(s) identified opposite the name of the Provider on EXHIBIT A (the “Provider Contact Person”). Neither the Recipient nor any of the Recipient’s Representatives will contact or otherwise communicate with any other Representative of the Provider in connection with a Transaction without the prior written authorization of the Provider Contact Person.
3. No Representations by Provider. Neither the Provider nor any of the Provider’s Representatives will be under any obligation to make any particular Confidential Information of the Provider available to the Recipient or any of the Recipient’s Representatives or to supplement or update any Confidential Information of the Provider previously furnished.
Neither the Provider nor any of its Representatives has made or is making any representation or warranty, express or implied, as to the accuracy or completeness of any of the Provider’s Confidential Information, and neither the Provider nor any of its Representatives will have any liability to the Recipient or to any of the Recipient’s Representatives on any basis (including, without limitation, in contract, tort or under United States federal or state securities laws or otherwise) relating to or resulting from the use of any of the Provider’s Confidential Information or any inaccuracies or errors therein or omissions therefrom. Only those representations and warranties that are included in any final definitive written agreement that provides for the consummation of a Transaction between the Parties (a “Definitive Agreement”) will have legal effect.
4. Permitted Disclosures.
(a) Notwithstanding the limitations set forth in Section 1 above:
(i) the Recipient may disclose Confidential Information of the Provider if and to the extent that the Provider consents in writing to the Recipient’s disclosure thereof;
(ii) subject to Section 4(b) below, the Recipient may disclose Confidential Information of the Provider to any Representative of the Recipient, but only to the extent such Representative (A) needs to know such Confidential Information for the purpose of helping the Recipient evaluate or negotiate a Transaction between the Parties, and (B) has been provided with a copy of this Agreement and has agreed to abide and be bound by the provisions hereof or is otherwise bound by confidentiality obligations at least as restrictive as those contained in this Agreement; and
(iii) subject to Section 4(c) below, the Recipient may disclose Confidential Information of the Provider to the extent required by applicable law or governmental regulation or by valid legal process or stock exchange rule.
(b) If the Provider delivers to the Recipient a written notice stating that certain Confidential Information of the Provider may be disclosed only to specified Representatives of the Recipient (such notice, a “Permitted Representatives Notice”), then, notwithstanding anything to the contrary contained in Section 4(a)(ii) above, the Recipient shall not thereafter disclose or permit the disclosure of any of such Confidential Information to any other Representative of the Recipient (any such other Representative, an “Impermissible Representative”). For clarity, if the Recipient disclosed, or permitted the disclosure of, any such certain Confidential Information to an Impermissible Representative prior to the Recipient’s receipt of the Permitted Representatives Notice, such disclosure shall not be deemed a breach of this Agreement.
(c) If the Recipient or any of the Recipient’s Representatives is required by law or governmental regulation or by subpoena or other valid legal process to disclose any of the Provider’s Confidential Information to any Person, then the Recipient will promptly provide the Provider with written notice of the applicable law, regulation or process so that the Provider may seek a protective order or other appropriate remedy. The Recipient and its Representatives will cooperate with the Provider and the Provider’s Representatives (at the Provider’s sole expense) in any attempt by the Provider to obtain any such protective order or other remedy. If the Provider elects not to seek, or is unsuccessful in obtaining, any such protective order or other remedy in connection with any requirement that the Recipient disclose Confidential Information of the Provider, then the Recipient may disclose such Confidential Information to the extent legally required; provided however, that the Recipient and its Representatives will use their reasonable efforts to ensure that such Confidential Information is treated confidentially by each Person to whom it is disclosed.
5. Return of Confidential Information. Upon the Provider’s request, the Recipient and the Recipient’s Representatives will promptly deliver to the Provider any of the Provider’s Confidential Information (and all copies thereof) obtained or possessed by the Recipient or any of the Recipient’s Representatives; provided, however, that, in lieu of delivering such Confidential Information to the Provider, the Recipient may destroy such Confidential Information and deliver to the Provider a certificate confirming their destruction; provided further, that Recipient shall not be required to return or destroy copies of Confidential Information created pursuant to Recipient’s automatic archiving and back-up procedures. Notwithstanding the delivery to the Provider, the destruction by the Recipient or the automatic archiving by Recipient of Confidential Information of the Provider pursuant to this Section 5, the Recipient and its Representatives will continue to be bound by their confidentiality obligations and other obligations under this Agreement with respect to such Confidential Information.
6. Limitation on Soliciting Employees. During the 12 month period commencing on the date of this Agreement, each Party agrees that neither it nor any of its direct or indirect subsidiaries who is or becomes aware of the negotiation of a possible Transaction between the Parties shall solicit for employment any employee of the other Party (or any of such other Party’s direct or indirect subsidiaries) with whom it (or any of its direct or indirect subsidiaries) came into contact in connection with a possible Transaction; provided, however, that this Section 6 will not prevent either Party or its direct or indirect subsidiaries from making generalized searches for employees by causing to be placed any general advertisement or similar notices or engaging search firms, provided that that such searches are not targeted specifically at employees of the other Party or its direct or indirect subsidiaries.
7. Standstill Provision. During the 12 month period commencing on the date of this Agreement (the “Standstill Period”), neither Buyer nor any of Buyer’s subsidiaries or other Representatives on behalf of Buyer will, in any manner, directly or indirectly:
(a) make, effect, initiate, cause or participate in (i) any acquisition of beneficial ownership of any securities of Seller or any securities of any subsidiary of Seller, (ii) any acquisition of any assets of Seller or any assets of any subsidiary of Seller, (iii) any tender offer, exchange offer, merger, business combination, recapitalization, restructuring, liquidation, dissolution or extraordinary transaction involving Seller or any subsidiary of Seller or involving any securities or assets of Seller or any securities 4r assets of any subsidiary of Seller, or (iv) any “solicitation” of “proxies” (as those terms are used in the proxy rules of the Securities and Exchange Commission) or consents with respect to any securities of Seller or any subsidiary of Seller;
(b) form, join or participate in a “group” (as defined in the Securities Exchange Act of 1934 and the rules promulgated thereunder) with respect to the beneficial ownership of any securities of Seller or any subsidiary of Seller;
(c) act, alone or in concert with others, to seek to control or influence the management, board of directors or policies of Seller or any subsidiary of Seller;
(d) take any action that might require Seller to make a public announcement regarding any of the types of matters set forth in clause (a) of this Section 7;
(e) agree or offer to take, or encourage or propose (publicly or otherwise) the taking of, any action referred to in clause (a), (b), (c) or (d) of this Section 7;
(f) assist, induce or encourage any other Person to take any action of the type referred to in clause (a), (b), (c), (d) or (e) of this Section 7;
(g) enter into any discussions, negotiations, arrangement or agreement with any other Person relating to any of the foregoing; or
(h) request or propose that Seller or any of Seller’s Representatives amend, waive or consider the amendment or waiver of any provision set forth in this Section 7;
provided that Buyer shall not be prohibited from making or discussing any offers in a confidential, non-public manner that does not violate sub-clause (d) above regarding the Transaction directly to or with the management or the Board of Directors of Seller, or their designated Representatives (provided that the contents, subject and existence of any such communications shall constitute Confidential Information hereunder).
The standstill provisions of this Section 7 shall not apply to the Parties’ entry into or consummation of the transactions contemplated by a Definitive Agreement. The standstill provisions of this Section 7 shall not apply in the event that, without any violation of the standstill provision, (1) any third party unrelated to Buyer has made any public announcement of its intent to commence a tender offer or exchange offer for more than 50% of the capital stock of Seller, (ii) Seller publicly announces that it has entered into a definitive agreement for a transaction or series of transactions (whether structured as a tender offer, exchange offer, merger, business combination, sale of assets or other similar transaction) that, if consummated, would result in a sale of more than 50% of the capital stock of Seller or a sale of all or substantially all of the assets of Seller, or (iii) any third party unrelated to Buyer commences, or makes a public announcement of its intention to commence, a proxy contest or proxy solicitation with respect to the election of, or enters into an agreement, commitment or understanding with respect to the replacement or addition of, members of the Board of Directors of the Seller such that a majority of the Board of Directors of Seller would be designated by such third party. The standstill provisions of this Section 7 shall automatically become applicable again if the third party announces its intent not to proceed with the proposed transaction described in Section 7(a) above; provided, however, that the Standstill Period shall not be extended beyond its original term. The expiration of the Standstill Period will not terminate or otherwise affect any of the other provisions of this letter agreement.
8. No Obligation to Pursue Transaction. Unless the Parties enter into a Definitive Agreement, no agreement providing for a transaction involving either of the Parties will be deemed to exist between the Parties, and neither Party will be under any obligation to negotiate or enter into any such agreement or transaction with the other Party. Each Party recognizes that, except as expressly provided in any legally binding written agreement between the Parties that is executed on or after the date of this Agreement: (i) the other Party and its Representatives will be free to negotiate with, and to enter into any agreement or transaction with, any other interested party; and (ii) such Party will not have any rights or claims against the other Party or any of the other Party’s Representatives arising out of or relating to any transaction or proposed transaction involving the other Party.
9. No Waiver. No failure or delay by either Party or any of its Representatives in exercising any right, power or privilege under this Agreement will operate as a waiver thereof, and no single or partial exercise of any such right, power or privilege will preclude any other or future exercise thereof or the exercise of any other right, power or privilege under this Agreement. No provision of this Agreement can be waived or amended except by means of a written instrument that is validly executed on behalf of both of the Parties and that refers specifically to the particular provision or provisions being waived or amended.
10. Remedies. Each Party acknowledges that money damages would not be a sufficient remedy for any breach of this Agreement by such Party or by any of such Party’s Representatives and that the other Party would suffer irreparable harm as a result of any such breach. Accordingly, each Party will also be entitled to equitable relief, including injunction and specific performance, as a remedy for any breach or threatened breach of this Agreement by the other Party or any of the other Party’s Representatives (without the need for posting a bond or providing other security). The equitable remedies referred to above will not be deemed to be the exclusive remedies for a breach of this Agreement, but rather will be in addition to all other remedies available at law or in equity to the Parties.
11. Successors and Assigns; Applicable Law; Jurisdiction and Venue. This Agreement will be binding upon and inure to the benefit of each Party and its Representatives and their respective heirs, successors and assigns. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware (without giving effect to principles of conflicts of laws). Each Party: (a) irrevocably and unconditionally consents and submits to the jurisdiction of the state and federal courts located in the State of Delaware for purposes of any action, suit or proceeding arising out of or relating to this Agreement; (b) irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of or relating to this Agreement in any state or federal court located in the State of Delaware; and (c) irrevocably and unconditionally waives the right to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any action, suit or proceeding arising out of or relating to this Agreement that is brought in any state or federal court located in the State of Delaware has been brought in an inconvenient forum.
12. Confidential Information. For purposes of this Agreement, the Provider’s “Confidential Information” will be deemed to include only the following:
(a) any information (including any technology, know-how, patent application, test result, research study, business plan, budget, forecast or projection) relating directly or indirectly to the business of the Provider, any predecessor entity or any subsidiary or other affiliate of the Provider (whether prepared by the Provider or by any other Person and whether or not in written form) that is or that has, within the last thirty (30) days, been made available to the Recipient or any Representative of the Recipient by or on behalf of the Provider or any Representative of the Provider;
(b) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that is or has been prepared by or for the Recipient or any Representative of the Recipient and that contains, reflects, interprets or is based directly or indirectly upon any information of the type referred to in clause (a) of this Section 12;
(c) the existence and terms of this Agreement, and the fact that information of the type referred to in clause (a) of this Section 12 has been made available to the Recipient or any of its Representatives; and
(d) the fact that discussions or negotiations are or may be taking place with respect to a Transaction involving the Parties, and the proposed terms of any such transaction.
However, the Provider’s “Confidential Information” will not be deemed to include:
(i) any information that is or becomes generally available to the public other than as a direct or indirect result of the disclosure of any of such information by the Recipient or by any of the Recipient’s Representatives;
(ii) any information that was in the Recipient’s possession prior to the time it was first made available to the Recipient or any of the Recipient’s Representatives by or on behalf of the Provider or any of the Provider’s Representatives, provided that the source of such information was not and is not reasonably known to the Recipient to be bound by any contractual or other obligation of confidentiality to the Provider or to any other Person with respect to any of such information;
(iii) any information that becomes available to the Recipient on a non-confidential basis from a source other than the Provider or any of the Provider’s Representatives, provided that such source is not reasonably known to the Recipient to be bound by any contractual or other obligation of confidentiality to the Provider or to any other Person with respect to any of such information; or
(iv) any information that is developed by or on behalf of the Recipient independently of the disclosure of Confidential Information and without reference to or use of Confidential Information.
13. Miscellaneous.
(a) For purposes of this Agreement, a Party’s “Representatives” will be deemed to include each Person that is or becomes (i) a subsidiary or other affiliate of such Party, or (ii) an officer, director, employee, partner, attorney, advisor, accountant, agent or representative of such Party or of any of such Party’s subsidiaries or other affiliates.
(b) The term “Person,” as used in this Agreement, will be broadly interpreted to include any individual and any corporation, partnership, entity, group, tribunal or governmental authority.
(c) Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction.
(d) By making Confidential Information or other information available to the Recipient or the Recipient’s Representatives, the Provider is not, and shall not be deemed to be, granting (expressly or by implication) any license or other right under or with respect to any patent, trade secret, copyright, trademark or other proprietary or intellectual property right. Neither the Recipient nor the Recipient’s Representatives shall file any patent application containing any claim to any subject matter derived from the Confidential Information of the Provider.
(e) To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client privilege, work product doctrine or any other applicable privilege or doctrine concerning any Confidential Information or any pending, threatened or prospective action, suit, proceeding, investigation, arbitration or dispute, (i) Provider, or the applicable direct or indirect subsidiary of Provider, is not waiving and shall not be deemed to have waived or diminished its attorney-client privileges, work-product protections, or other applicable privileges or doctrines as a result of disclosing any Confidential Information (including Confidential Information related to pending or threatened litigation) and (ii) it is acknowledged and agreed that the Parties have a commonality of interest with respect to such Confidential Information or action, suit, proceeding, investigation, arbitration or dispute and that it is the Parties’ mutual desire, intention and understanding that the sharing of such materials and other information is not intended to, and shall not, affect the confidentiality of any of such materials or other information or waive or diminish the continued protection of any of such materials or other information under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine. Accordingly, all Confidential Information that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine shall remain entitled to protection thereunder and shall be entitled to protection under the joint defense doctrine, and the Parties agree to take all measures necessary to preserve, to the fullest extent possible, the applicability of all such privileges or doctrines.
(f) This Agreement constitutes the entire agreement between the Recipient and the Provider regarding the subject matter hereof and supersedes any prior agreement between the Recipient and the Provider regarding the subject matter hereof.
(g) This Agreement will terminate 12 months from the effective date of this Agreement, unless earlier terminated by either Party at any time upon 30 days written notice to the other Party. The termination of this Agreement shall not relieve the Recipient of the obligations hereunder with respect to Confidential Information of the Provider (which shall survive any such termination and continue for a period of three years from the effective date of this Agreement, provided that such obligations with respect to any trade secrets of the Provider will survive indefinitely), or relieve either party of its obligations under Section 6 of this Agreement or relieve Buyer of its obligations under Section 7 of this Agreement (which shall survive for the stated durations thereof), and the provisions of Sections 3, 5, 8, 9, 10, 11 and 13 shall remain in full force and effect and survive any termination of this Agreement.
(h) The Recipient agrees not to export, directly or indirectly, any U.S. source technical data acquired from the Provider or any products utilizing such data to countries outside the United States, which export may be in violation of the United States export laws or regulations.
(i) The Parties hereto confirm their agreement that this Agreement, as well as any amendment hereto and all other documents related hereto, including legal notices, shall be in the English language only.
[Signature Page Next]
ARMO BIOSCIENCES, INC. ELI LILLY AND COMPANY
By: /s/ Peter Van Vlasselaer By: /s/ Timothy C. Dolan
Title: CEO Title: V.P., Business Development
Address: 575 Chesapeake Dr. Address: Lilly Corporate Center
Redwood City, CA 94063 Indianapolis, IN
| Entailment |
624_nda-4 | 624_nda-4_0 | Q: Receiving Party shall not use any Confidential Information for any purpose other than the purposes stated in Agreement.
Text: Exhibit (d)(3)
NON-DISCLOSURE AGREEMENT
This NON-DISCLOSURE AGREEMENT (“Agreement”) is being entered into as of March 19, 2018 between ARMO Biosciences, Inc., a Delaware corporation (“Seller”), and Eli Lilly and Company, an Indiana corporation (“Buyer” and with Seller referred to collectively as the “Parties” and individually as a “Party”).
In order to facilitate the consideration and negotiation of a possible negotiated transaction involving Buyer’s acquisition of all of the equity interests in Seller (a “Transaction”), each Party has either requested or may request access to certain non-public information regarding the other Party and the other Party’s subsidiaries. (Each Party, in its capacity as a provider of information, is referred to in this Agreement as the “Provider”; and each Party, in its capacity as a recipient of information, is referred to in this Agreement as the “Recipient”.) This Agreement sets forth the Parties’ obligations regarding the use and disclosure of such information and regarding various related matters.
The Parties, intending to be legally bound, acknowledge and agree as follows:
1. Limitations on Use and Disclosure of Confidential Information. Neither the Recipient nor any of the Recipient’s Representatives (as defined in Section 13 below) will, at any time, directly or indirectly:
(a) make use of any of the Provider’s Confidential Information (as defined in Section 12 below), except for the specific purpose of considering, evaluating and negotiating a Transaction between the Parties; or
(b) subject to Section 4 below, disclose any of the Provider’s Confidential Information to any other Person (as defined in Section 13 below).
The Recipient will be liable and responsible for any breach of this Agreement by any of its Representatives and for any other action or conduct on the part of any of its Representatives that is inconsistent with any provision of this Agreement. The Recipient will (at its own expense) take all reasonable actions necessary to restrain its Representatives from making any unauthorized use or disclosure of any of the Provider’s Confidential Information.
2. Provider Contact Person. Any request by the Recipient or any of its Representatives to review any of the Provider’s Confidential Information must be directed to the individual(s) identified opposite the name of the Provider on EXHIBIT A (the “Provider Contact Person”). Neither the Recipient nor any of the Recipient’s Representatives will contact or otherwise communicate with any other Representative of the Provider in connection with a Transaction without the prior written authorization of the Provider Contact Person.
3. No Representations by Provider. Neither the Provider nor any of the Provider’s Representatives will be under any obligation to make any particular Confidential Information of the Provider available to the Recipient or any of the Recipient’s Representatives or to supplement or update any Confidential Information of the Provider previously furnished.
Neither the Provider nor any of its Representatives has made or is making any representation or warranty, express or implied, as to the accuracy or completeness of any of the Provider’s Confidential Information, and neither the Provider nor any of its Representatives will have any liability to the Recipient or to any of the Recipient’s Representatives on any basis (including, without limitation, in contract, tort or under United States federal or state securities laws or otherwise) relating to or resulting from the use of any of the Provider’s Confidential Information or any inaccuracies or errors therein or omissions therefrom. Only those representations and warranties that are included in any final definitive written agreement that provides for the consummation of a Transaction between the Parties (a “Definitive Agreement”) will have legal effect.
4. Permitted Disclosures.
(a) Notwithstanding the limitations set forth in Section 1 above:
(i) the Recipient may disclose Confidential Information of the Provider if and to the extent that the Provider consents in writing to the Recipient’s disclosure thereof;
(ii) subject to Section 4(b) below, the Recipient may disclose Confidential Information of the Provider to any Representative of the Recipient, but only to the extent such Representative (A) needs to know such Confidential Information for the purpose of helping the Recipient evaluate or negotiate a Transaction between the Parties, and (B) has been provided with a copy of this Agreement and has agreed to abide and be bound by the provisions hereof or is otherwise bound by confidentiality obligations at least as restrictive as those contained in this Agreement; and
(iii) subject to Section 4(c) below, the Recipient may disclose Confidential Information of the Provider to the extent required by applicable law or governmental regulation or by valid legal process or stock exchange rule.
(b) If the Provider delivers to the Recipient a written notice stating that certain Confidential Information of the Provider may be disclosed only to specified Representatives of the Recipient (such notice, a “Permitted Representatives Notice”), then, notwithstanding anything to the contrary contained in Section 4(a)(ii) above, the Recipient shall not thereafter disclose or permit the disclosure of any of such Confidential Information to any other Representative of the Recipient (any such other Representative, an “Impermissible Representative”). For clarity, if the Recipient disclosed, or permitted the disclosure of, any such certain Confidential Information to an Impermissible Representative prior to the Recipient’s receipt of the Permitted Representatives Notice, such disclosure shall not be deemed a breach of this Agreement.
(c) If the Recipient or any of the Recipient’s Representatives is required by law or governmental regulation or by subpoena or other valid legal process to disclose any of the Provider’s Confidential Information to any Person, then the Recipient will promptly provide the Provider with written notice of the applicable law, regulation or process so that the Provider may seek a protective order or other appropriate remedy. The Recipient and its Representatives will cooperate with the Provider and the Provider’s Representatives (at the Provider’s sole expense) in any attempt by the Provider to obtain any such protective order or other remedy. If the Provider elects not to seek, or is unsuccessful in obtaining, any such protective order or other remedy in connection with any requirement that the Recipient disclose Confidential Information of the Provider, then the Recipient may disclose such Confidential Information to the extent legally required; provided however, that the Recipient and its Representatives will use their reasonable efforts to ensure that such Confidential Information is treated confidentially by each Person to whom it is disclosed.
5. Return of Confidential Information. Upon the Provider’s request, the Recipient and the Recipient’s Representatives will promptly deliver to the Provider any of the Provider’s Confidential Information (and all copies thereof) obtained or possessed by the Recipient or any of the Recipient’s Representatives; provided, however, that, in lieu of delivering such Confidential Information to the Provider, the Recipient may destroy such Confidential Information and deliver to the Provider a certificate confirming their destruction; provided further, that Recipient shall not be required to return or destroy copies of Confidential Information created pursuant to Recipient’s automatic archiving and back-up procedures. Notwithstanding the delivery to the Provider, the destruction by the Recipient or the automatic archiving by Recipient of Confidential Information of the Provider pursuant to this Section 5, the Recipient and its Representatives will continue to be bound by their confidentiality obligations and other obligations under this Agreement with respect to such Confidential Information.
6. Limitation on Soliciting Employees. During the 12 month period commencing on the date of this Agreement, each Party agrees that neither it nor any of its direct or indirect subsidiaries who is or becomes aware of the negotiation of a possible Transaction between the Parties shall solicit for employment any employee of the other Party (or any of such other Party’s direct or indirect subsidiaries) with whom it (or any of its direct or indirect subsidiaries) came into contact in connection with a possible Transaction; provided, however, that this Section 6 will not prevent either Party or its direct or indirect subsidiaries from making generalized searches for employees by causing to be placed any general advertisement or similar notices or engaging search firms, provided that that such searches are not targeted specifically at employees of the other Party or its direct or indirect subsidiaries.
7. Standstill Provision. During the 12 month period commencing on the date of this Agreement (the “Standstill Period”), neither Buyer nor any of Buyer’s subsidiaries or other Representatives on behalf of Buyer will, in any manner, directly or indirectly:
(a) make, effect, initiate, cause or participate in (i) any acquisition of beneficial ownership of any securities of Seller or any securities of any subsidiary of Seller, (ii) any acquisition of any assets of Seller or any assets of any subsidiary of Seller, (iii) any tender offer, exchange offer, merger, business combination, recapitalization, restructuring, liquidation, dissolution or extraordinary transaction involving Seller or any subsidiary of Seller or involving any securities or assets of Seller or any securities 4r assets of any subsidiary of Seller, or (iv) any “solicitation” of “proxies” (as those terms are used in the proxy rules of the Securities and Exchange Commission) or consents with respect to any securities of Seller or any subsidiary of Seller;
(b) form, join or participate in a “group” (as defined in the Securities Exchange Act of 1934 and the rules promulgated thereunder) with respect to the beneficial ownership of any securities of Seller or any subsidiary of Seller;
(c) act, alone or in concert with others, to seek to control or influence the management, board of directors or policies of Seller or any subsidiary of Seller;
(d) take any action that might require Seller to make a public announcement regarding any of the types of matters set forth in clause (a) of this Section 7;
(e) agree or offer to take, or encourage or propose (publicly or otherwise) the taking of, any action referred to in clause (a), (b), (c) or (d) of this Section 7;
(f) assist, induce or encourage any other Person to take any action of the type referred to in clause (a), (b), (c), (d) or (e) of this Section 7;
(g) enter into any discussions, negotiations, arrangement or agreement with any other Person relating to any of the foregoing; or
(h) request or propose that Seller or any of Seller’s Representatives amend, waive or consider the amendment or waiver of any provision set forth in this Section 7;
provided that Buyer shall not be prohibited from making or discussing any offers in a confidential, non-public manner that does not violate sub-clause (d) above regarding the Transaction directly to or with the management or the Board of Directors of Seller, or their designated Representatives (provided that the contents, subject and existence of any such communications shall constitute Confidential Information hereunder).
The standstill provisions of this Section 7 shall not apply to the Parties’ entry into or consummation of the transactions contemplated by a Definitive Agreement. The standstill provisions of this Section 7 shall not apply in the event that, without any violation of the standstill provision, (1) any third party unrelated to Buyer has made any public announcement of its intent to commence a tender offer or exchange offer for more than 50% of the capital stock of Seller, (ii) Seller publicly announces that it has entered into a definitive agreement for a transaction or series of transactions (whether structured as a tender offer, exchange offer, merger, business combination, sale of assets or other similar transaction) that, if consummated, would result in a sale of more than 50% of the capital stock of Seller or a sale of all or substantially all of the assets of Seller, or (iii) any third party unrelated to Buyer commences, or makes a public announcement of its intention to commence, a proxy contest or proxy solicitation with respect to the election of, or enters into an agreement, commitment or understanding with respect to the replacement or addition of, members of the Board of Directors of the Seller such that a majority of the Board of Directors of Seller would be designated by such third party. The standstill provisions of this Section 7 shall automatically become applicable again if the third party announces its intent not to proceed with the proposed transaction described in Section 7(a) above; provided, however, that the Standstill Period shall not be extended beyond its original term. The expiration of the Standstill Period will not terminate or otherwise affect any of the other provisions of this letter agreement.
8. No Obligation to Pursue Transaction. Unless the Parties enter into a Definitive Agreement, no agreement providing for a transaction involving either of the Parties will be deemed to exist between the Parties, and neither Party will be under any obligation to negotiate or enter into any such agreement or transaction with the other Party. Each Party recognizes that, except as expressly provided in any legally binding written agreement between the Parties that is executed on or after the date of this Agreement: (i) the other Party and its Representatives will be free to negotiate with, and to enter into any agreement or transaction with, any other interested party; and (ii) such Party will not have any rights or claims against the other Party or any of the other Party’s Representatives arising out of or relating to any transaction or proposed transaction involving the other Party.
9. No Waiver. No failure or delay by either Party or any of its Representatives in exercising any right, power or privilege under this Agreement will operate as a waiver thereof, and no single or partial exercise of any such right, power or privilege will preclude any other or future exercise thereof or the exercise of any other right, power or privilege under this Agreement. No provision of this Agreement can be waived or amended except by means of a written instrument that is validly executed on behalf of both of the Parties and that refers specifically to the particular provision or provisions being waived or amended.
10. Remedies. Each Party acknowledges that money damages would not be a sufficient remedy for any breach of this Agreement by such Party or by any of such Party’s Representatives and that the other Party would suffer irreparable harm as a result of any such breach. Accordingly, each Party will also be entitled to equitable relief, including injunction and specific performance, as a remedy for any breach or threatened breach of this Agreement by the other Party or any of the other Party’s Representatives (without the need for posting a bond or providing other security). The equitable remedies referred to above will not be deemed to be the exclusive remedies for a breach of this Agreement, but rather will be in addition to all other remedies available at law or in equity to the Parties.
11. Successors and Assigns; Applicable Law; Jurisdiction and Venue. This Agreement will be binding upon and inure to the benefit of each Party and its Representatives and their respective heirs, successors and assigns. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware (without giving effect to principles of conflicts of laws). Each Party: (a) irrevocably and unconditionally consents and submits to the jurisdiction of the state and federal courts located in the State of Delaware for purposes of any action, suit or proceeding arising out of or relating to this Agreement; (b) irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of or relating to this Agreement in any state or federal court located in the State of Delaware; and (c) irrevocably and unconditionally waives the right to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any action, suit or proceeding arising out of or relating to this Agreement that is brought in any state or federal court located in the State of Delaware has been brought in an inconvenient forum.
12. Confidential Information. For purposes of this Agreement, the Provider’s “Confidential Information” will be deemed to include only the following:
(a) any information (including any technology, know-how, patent application, test result, research study, business plan, budget, forecast or projection) relating directly or indirectly to the business of the Provider, any predecessor entity or any subsidiary or other affiliate of the Provider (whether prepared by the Provider or by any other Person and whether or not in written form) that is or that has, within the last thirty (30) days, been made available to the Recipient or any Representative of the Recipient by or on behalf of the Provider or any Representative of the Provider;
(b) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that is or has been prepared by or for the Recipient or any Representative of the Recipient and that contains, reflects, interprets or is based directly or indirectly upon any information of the type referred to in clause (a) of this Section 12;
(c) the existence and terms of this Agreement, and the fact that information of the type referred to in clause (a) of this Section 12 has been made available to the Recipient or any of its Representatives; and
(d) the fact that discussions or negotiations are or may be taking place with respect to a Transaction involving the Parties, and the proposed terms of any such transaction.
However, the Provider’s “Confidential Information” will not be deemed to include:
(i) any information that is or becomes generally available to the public other than as a direct or indirect result of the disclosure of any of such information by the Recipient or by any of the Recipient’s Representatives;
(ii) any information that was in the Recipient’s possession prior to the time it was first made available to the Recipient or any of the Recipient’s Representatives by or on behalf of the Provider or any of the Provider’s Representatives, provided that the source of such information was not and is not reasonably known to the Recipient to be bound by any contractual or other obligation of confidentiality to the Provider or to any other Person with respect to any of such information;
(iii) any information that becomes available to the Recipient on a non-confidential basis from a source other than the Provider or any of the Provider’s Representatives, provided that such source is not reasonably known to the Recipient to be bound by any contractual or other obligation of confidentiality to the Provider or to any other Person with respect to any of such information; or
(iv) any information that is developed by or on behalf of the Recipient independently of the disclosure of Confidential Information and without reference to or use of Confidential Information.
13. Miscellaneous.
(a) For purposes of this Agreement, a Party’s “Representatives” will be deemed to include each Person that is or becomes (i) a subsidiary or other affiliate of such Party, or (ii) an officer, director, employee, partner, attorney, advisor, accountant, agent or representative of such Party or of any of such Party’s subsidiaries or other affiliates.
(b) The term “Person,” as used in this Agreement, will be broadly interpreted to include any individual and any corporation, partnership, entity, group, tribunal or governmental authority.
(c) Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction.
(d) By making Confidential Information or other information available to the Recipient or the Recipient’s Representatives, the Provider is not, and shall not be deemed to be, granting (expressly or by implication) any license or other right under or with respect to any patent, trade secret, copyright, trademark or other proprietary or intellectual property right. Neither the Recipient nor the Recipient’s Representatives shall file any patent application containing any claim to any subject matter derived from the Confidential Information of the Provider.
(e) To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client privilege, work product doctrine or any other applicable privilege or doctrine concerning any Confidential Information or any pending, threatened or prospective action, suit, proceeding, investigation, arbitration or dispute, (i) Provider, or the applicable direct or indirect subsidiary of Provider, is not waiving and shall not be deemed to have waived or diminished its attorney-client privileges, work-product protections, or other applicable privileges or doctrines as a result of disclosing any Confidential Information (including Confidential Information related to pending or threatened litigation) and (ii) it is acknowledged and agreed that the Parties have a commonality of interest with respect to such Confidential Information or action, suit, proceeding, investigation, arbitration or dispute and that it is the Parties’ mutual desire, intention and understanding that the sharing of such materials and other information is not intended to, and shall not, affect the confidentiality of any of such materials or other information or waive or diminish the continued protection of any of such materials or other information under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine. Accordingly, all Confidential Information that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine shall remain entitled to protection thereunder and shall be entitled to protection under the joint defense doctrine, and the Parties agree to take all measures necessary to preserve, to the fullest extent possible, the applicability of all such privileges or doctrines.
(f) This Agreement constitutes the entire agreement between the Recipient and the Provider regarding the subject matter hereof and supersedes any prior agreement between the Recipient and the Provider regarding the subject matter hereof.
(g) This Agreement will terminate 12 months from the effective date of this Agreement, unless earlier terminated by either Party at any time upon 30 days written notice to the other Party. The termination of this Agreement shall not relieve the Recipient of the obligations hereunder with respect to Confidential Information of the Provider (which shall survive any such termination and continue for a period of three years from the effective date of this Agreement, provided that such obligations with respect to any trade secrets of the Provider will survive indefinitely), or relieve either party of its obligations under Section 6 of this Agreement or relieve Buyer of its obligations under Section 7 of this Agreement (which shall survive for the stated durations thereof), and the provisions of Sections 3, 5, 8, 9, 10, 11 and 13 shall remain in full force and effect and survive any termination of this Agreement.
(h) The Recipient agrees not to export, directly or indirectly, any U.S. source technical data acquired from the Provider or any products utilizing such data to countries outside the United States, which export may be in violation of the United States export laws or regulations.
(i) The Parties hereto confirm their agreement that this Agreement, as well as any amendment hereto and all other documents related hereto, including legal notices, shall be in the English language only.
[Signature Page Next]
ARMO BIOSCIENCES, INC. ELI LILLY AND COMPANY
By: /s/ Peter Van Vlasselaer By: /s/ Timothy C. Dolan
Title: CEO Title: V.P., Business Development
Address: 575 Chesapeake Dr. Address: Lilly Corporate Center
Redwood City, CA 94063 Indianapolis, IN
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