Confidentiality Agreement
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Welcome to CANCER FUND’s Screening Committee Quick-Look at new innovations we are considering for investment.
Before we start, please review the Confidentiality and Non-Solicitation Agreement below and indicate your agreement. This is for the protection of all parties involved in sharing confidential information on these early-stage companies.
CANCER FUND Confidentiality and Non-Solicitation Agreement
THIS CONFIDENTIALITY AGREEMENT (“Agreement”), dated as of today’s date (the “Effective Date”), is made by and between each of the following:
(1) Cancer Fund I, LLC, a Delaware limited liability company, and its Manager, CXO Advisors & Management, LLC d/b/a CANCER FUND; and
(2) [[FNAME]] [[LNAME]] (“Recipient”).
RECITALS
WHEREAS, in connection with the consideration by the Recipient of a potential investment in the Fund or one of its Affiliates (the “Transaction”), Recipient has requested access to certain information that is non-public, confidential, personal or proprietary in nature and is currently in the possession of or controlled by the Fund to facilitate Recipient’s due diligence investigation with respect to the Fund.
NOW, THEREFORE, in consideration for and as a condition of the Fund’s furnishing such information as the Fund, in its sole discretion, agrees to deliver or otherwise make available to Recipient and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree to be bound by the terms of this Agreement.
I. DEFINITIONS, INTERPRETATION AND EXHIBITS
A. Definitions. As used in this Agreement, these words or expressions have the following meanings:
- “Affiliate” means, with respect to any Person, any Person who controls, is controlled by, or is under common control with, another Person. A Person is deemed to “control” another Person if it owns, directly or indirectly, a majority of the voting power of the Person.
- “Confidential Information” includes, without limitation:
- any information and data provided by Discloser to Recipient and its Representatives, subject to the terms and conditions of this Agreement, that pertains to the Fund, the Manager and/or the Transaction regardless of whether the information was communicated orally, in writing or electronic form;
- any Derived Information; and
- any other information relative to any of the foregoing and disclosed on an explicit or implicit condition of confidentiality prior to the date of signing this Agreement.
- “Derived Information” means summaries, notes, analyses, compilations, studies or other records that contain or otherwise reflect or have been generated, wholly or partly, or derived from Confidential Information.
- “Discloser” means the Fund and/or all Representatives of the Fund.
- “Effective Date” has the meaning ascribed to it in the Preamble.
- “Fund” has the meaning ascribed to it in the Preamble.
- “Manager” means CXO Advisors & Management, LLC, an Arizona limited liability company doing business as CANCER FUND.
- “Parties” means, collectively, the Fund and Recipient and “Party” means one of them, as the context provides.
- “Person” means an individual, corporation, association, partnership, state, statutory corporation, government entity or any other legal entity.
- “Representatives” means the Person itself, its Affiliates, and its and their consultants, contractors, agents, representatives (including lawyers, accountants and financial advisors), members, directors, officers, shareholders and employees.
- “Transaction” has the meaning ascribed to it in the Recitals.
B. Interpretation. Unless the context expressly requires otherwise, all of the following apply to the interpretation of this Agreement:
- The plural and singular words each include the other.
- The word “or” is not exclusive.
- The word “includes” and “including” are not limiting.
- The headings in this Agreement are included for convenience and do not affect the construction or interpretation of any provision of, or the rights or obligations of a Party under, this Agreement.
II. CONFIDENTIALITY OBLIGATIONS
A. Confidentiality. In consideration of Discloser disclosing the Confidential Information to Recipient, Recipient shall keep all Confidential Information strictly confidential in accordance with the terms of this Agreement and shall only use the Confidential Information for the purpose of evaluating or negotiating a Transaction between Recipient and the Fund or their respective Affiliates.
B. Non-Disclosure. Except as permitted by this Agreement, neither Party shall disclose (a) the fact that the Confidential Information may be or has been provided to Recipient; (b) the fact that Recipient may be, or has been, participating in discussions and/or have withdrawn from discussions with Discloser in relation to the Transaction or the substance of any such discussions; and (c) the terms or the existence of this Agreement or of any other agreement entered into or to be entered into in connection with the discussions, in each case other than to any of Recipient’s or Discloser’s Representatives on a need to know basis in connection with the Transaction.
III. PERMITTED DISCLOSURE BY RECIPIENT
A. Exceptions to Disclosure Restrictions. Recipient may disclose Confidential Information without Discloser’s prior written consent to any Representative who needs to know the Confidential Information for the sole purpose of assisting the Recipient in evaluating or negotiating the possible Transaction.
B. Further Obligations. Recipient shall advise all Representatives to whom the Confidential Information is disclosed of the obligations of confidentiality set forth in this Agreement and will further advise such Representatives to keep the Confidential Information confidential and to not disclose or divulge the Confidential Information to any unauthorized Person. Recipient shall be responsible for any breach of this Agreement by any of its Representatives to whom the Confidential Information is disclosed.
IV. EXCEPTIONS TO CONFIDENTIALITY OBLIGATIONS
Recipient may disclose any of the Confidential Information without Discloser’s prior written consent only to the extent that the Confidential Information being disclosed satisfies any of the following conditions:
- The Confidential Information being disclosed is already known to Recipient or a Representative of Recipient and is not otherwise subject to confidentiality obligations on the date the relevant Confidential Information is disclosed.
- The Confidential Information being disclosed is already in the public domain or becomes a part of the public domain other than through the act or omission of Recipient or of any other Person to whom the Confidential Information is disclosed pursuant to this Agreement.
- The Confidential Information is required to be disclosed under applicable law, stock exchange regulations or by a governmental order, decree, regulation or rule or by order of any competent court. In these circumstances, Recipient shall, as legally permitted, give prompt advance written notice to the Fund of such requirement to disclose before the time mandated for disclosure, and in any event prior to making any such disclosure, shall consult with the Fund and its Representatives on the advisability of taking steps to eliminate or narrow the requirement to disclose Confidential Information and shall otherwise cooperate with the Fund to obtain a protective order or other appropriate remedy to protect the Confidential Information, or to allow the Fund to provide a limited waiver of compliance with the prohibition against unauthorized disclosure. If the Fund is unable to obtain or cannot seek a protective order or provides a limited waiver of compliance, Recipient will disclose only that portion of the Confidential Information that, at the written advice of Recipient’s counsel (which writing shall also be addressed and delivered to the Fund), Recipient is legally required to disclose.
V. REPRESENTATIONS AND WARRANTIES
Discloser makes no representations or warranties, express or implied, regarding the quality, quantity, condition, materiality, validity, completeness or accuracy of the Confidential Information. Discloser and its Representatives will have no liability for any errors or omissions in the Confidential Information disclosed or for the use, interpretation or reliance upon the Confidential Information by Recipient.
VI. NON-SOLICITATION AND NON-CIRCUMVENTION
Recipient agrees that, without the Fund’s prior written consent, Recipient shall not, directly or indirectly, during the term of this Agreement and for a period of two (2) years thereafter:
A. Contact Companies. Initiate contact with, solicit, or attempt to solicit any company introduced or made known to Recipient through the Fund or its Affiliates, for the purpose of (a) providing or offering to provide products or services, (b) soliciting products or services from such company, or (c) making, offering, or seeking to make an investment in such company outside of the Fund’s investment process.
B. Circumvent the Fund. Take any action to circumvent the Fund’s role or participation with respect to such companies, including engaging in negotiations or transactions that reasonably should have been directed through the Fund.
C. Remedies. Recipient acknowledges that any breach of this Section would cause irreparable harm to the Fund or companies for which monetary damages would be an insufficient remedy, and that the Fund is entitled to equitable relief, including injunction, in addition to any other remedies available at law or equity.
VII. REMEDIES FOR BREACH
Each Party acknowledges that damages may not be a sufficient remedy for disclosure of information in breach of this Agreement, and the Fund and its Representatives are entitled to seek specific performance or injunctive relief (as appropriate) as a remedy for any breach, in addition to any other remedies available to the Fund and its Representatives under this Agreement, at law or in equity. Recipient agrees to indemnify the Fund, the Manager and their respective Affiliates for any and all losses, damages, costs or expenses that they may incur due to Recipient’s use or misuse of Confidential Information, including, without limitation, any attorneys’ fees or other costs incurred. Recipient and its Representatives may disclose to any and all persons, without limitations of any kind, the tax treatment and tax structure of the Fund and all materials of any kind (including opinions and other tax analyses that are provided to Recipient relating to such tax treatment and tax structure); provided, that the foregoing does not constitute an authorization to disclose information identifying the Fund, the General Partner or any parties to transactions engaged in by the Fund or (except to the extent relating to such tax structure or tax treatment) any nonpublic commercial or financial information.
VIII. OWNERSHIP AND RETURN OR DESTRUCTION OF THE CONFIDENTIAL INFORMATION
A. Ownership. The Confidential Information is the property of the Fund. Except as set forth in this Agreement, Recipient does not acquire any license, proprietary interest in, or right to the Confidential Information as a result of this Agreement.
B. Return of Confidential Information. The Fund may demand the return or destruction of Confidential Information and the destruction of Derived Information at any time by giving written notice to Recipient. Within thirty (30) days of receipt of such notice, Recipient must, at its option, either return or destroy all of the original Confidential Information and all copies and reproductions (both written and electronic) in its possession and in the possession of Persons to whom it was disclosed. Recipient must also destroy all Derived Information; provided, however, that Recipient is not obligated to destroy any documents that must be retained under any applicable law, rule or regulation, including in the case of professional advisers, the rules of a professional body or pursuant to Recipient’s or its Representatives’ internal document retention program.
IX. NO TRANSACTION
The Confidential Information is being provided to sophisticated prospective investors in connection with their due diligence investigation only. It constitutes neither an offer to sell, nor the solicitation of an offer to subscribe for an interest or a share in the Fund. Nothing in this Agreement shall be considered as giving rise to an obligation to: (a) enter into any arrangement or agreement as a consequence of the Confidential Information being made available on the terms of this Agreement, whether in connection with the Transaction or otherwise, nor to express an intention to do so; or (b) include terms that are the same as or similar to the terms of this Agreement in any agreement entered into in connection with the Transaction. Unless and until the Parties or their respective Affiliates enter into binding legal agreements (in which case the terms of those agreements will prevail), each party will remain at liberty to give effect to or to decline to give effect to all or any part of the proposed Transaction at its sole discretion.
X. TERMINATION
This Agreement shall expire on the earlier of (a) the two-year anniversary of the Effective Date or (b) the effective date of a definitive agreement between the Parties in relation to the Transaction.
XI. GOVERNING LAW AND RESOLUTION OF DISPUTES
A. Governing Law. This Agreement shall be governed by and construed in accordance with the internal laws of the State of Delaware.
B. Dispute Resolution. In the unlikely event a dispute between the Parties arising from or related to this Agreement is not readily resolved, the Parties’ preference for resolution is by a face-to-face meeting between their respective senior officers or their designated representatives. In the highly unlikely event that the meeting and any agreed follow-up does not resolve the matter, any controversy or claim arising out of or relating to this Agreement shall be settled through binding arbitration in accordance with the rules of the American Arbitration Association, and judgment upon an award arising in connection therewith may be entered in any court of competent jurisdiction. Any arbitration, mediation, court action, or other adjudicative proceeding arising out of or relating to this Agreement shall be held in the State of Arizona, or, if such proceeding cannot be lawfully held such location, as near thereto as applicable law permits. The losing party shall be responsible for the prevailing party’s out of pocket costs, including without limitation, legal fees in respect of the arbitration proceeding. The Parties agree that all information concerning the arbitration (including the facts surrounding the dispute that is the subject of such arbitration, the substance of such arbitration and the dispute, any interim or final relief awarded, any other result of such arbitration and the existence of such arbitration) shall remain confidential and not be disclosed, except as may be required to obtain any injunctive or other interim relief, or enforce any arbitral award or other final relief.
XII. NOTICES
Notices that are required or permitted under this Agreement shall be in writing and shall be delivered by hand or by courier or be transmitted by electronic mail to the Party to whom it is to be given at the address set forth on the signature page to this Agreement.
XIII. GENERAL PROVISIONS
A. Prior Agreements. This Agreement comprises the complete and exclusive agreement between the Parties concerning the Confidential Information and supersedes all oral and written communications, negotiations, representations or agreements in relation to that subject matter made or entered into before the Effective Date.
B. Counterparts. This Agreement may be executed in any number of counterparts, each of which will be deemed an original of this Agreement, and which together will constitute one and the same instrument. Neither Party will be bound to this Agreement unless and until both Parties have executed a counterpart.
C. Amendments. No amendment to this Agreement is effective unless made in writing and signed by authorized representatives of both Parties.
D. Waiver. A Party’s delay or failure to pursue remedies for breach of this Agreement does not constitute a waiver by that Party of any breach of this Agreement or raise any defense against claims for breach of this Agreement. The waiver or failure to require the performance of any covenant or obligation contained in this Agreement or pursue remedies for breach of this Agreement does not waive a later breach of that covenant or obligation.
E. Severability. Each provision of this Agreement is severable and if any provision is determined to be invalid, unenforceable or illegal under any existing or future law by a court, arbitrator of competent jurisdiction or by operation of any applicable law, the remaining provisions of the Agreement shall continue to be valid, enforceable and legal.
F. Non-Exclusive Disclosure. The disclosure of Confidential Information to Recipient is non-exclusive, and Discloser may disclose the Confidential Information to any Person at its sole discretion.
G. Binding Nature; Third Party Beneficiary. This Agreement shall be binding upon and inure to the benefit of the Parties, and their respective successors and assigns. No other person shall have any rights, interest or claims hereunder or be entitled to any benefits under or on account of this Agreement as a third-party beneficiary or otherwise.
H. Assignment. Neither Party may assign this Agreement (in whole or in part) without the other Party’s prior written consent.
Please indicate your agreement to the
CANCER FUND CONFIDENTIALITY AND NON-SOLICITATION AGREEMENT below.
