Bionatus, LLC Investor Confidentiality Agreement
In connection with your consideration of a possible transaction with Bionatus, LLC (the “Company”), you have requested information concerning the Company. As a condition to our furnishing you with such information, you agree to treat any information concerning the Company (whether prepared by the Company, its advisors or otherwise) which is furnished to you by or on behalf of the Company (herein collectively referred to as the "Confidential Evaluation Material") in accordance with the provisions of this letter and to take or abstain from taking certain other actions herein set forth. The term "Confidential Evaluation Material" does not include information which (i) is already in your possession, provided that such information is not known by you to be subject to another confidentiality agreement with or other obligation of secrecy to the Company or another party, (ii) becomes generally available to the public other than as a result of a disclosure by you or your agents, directors, officers, employees, attorneys or advisors (agents, directors, officers, employees, attorneys and advisors are individually and collectively referred to herein as "Representatives"), or (iii) becomes available to you on a non-confidential 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 obligation of secrecy to the Company or another party.
You hereby agree that the Confidential Evaluation Material will be used solely for the purpose of evaluating a possible transaction between you and the Company, and that such information will be kept confidential by you and your Representatives; provided, however, that (i) any of the Confidential Evaluation Material may be disclosed to your Representatives who need to know such information for the purpose of evaluating any such possible transaction between you and the Company (it being understood that such Representatives shall be informed by you of the confidential nature of such information and shall be directed by you to treat such information confidentially in accordance with the terms of this agreement), and (ii) a disclosure of such information to which the Company consents in writing may be made.
In addition, without the prior written consent of the Company, you shall not, and shall direct your Representatives not to, disclose to any person either the fact that discussions or negotiations are taking place concerning a possible transaction between you and the Company or any of the terms, conditions or other facts with respect to any such possible transaction, including the status thereof.
In the event that you or your Representatives are requested or required in a judicial, administrative or governmental proceeding to disclose any Confidential Evaluation Material, you agree that you will cooperate with the Company and provide it with prompt notice of such request(s) so that the Company may seek an appropriate protective order and/or waive your compliance with the provisions of this Agreement. If, in the absence of a protective order or the receipt of a waiver hereunder, you or your Representatives are nonetheless, in the opinion of your counsel, legally required to disclose Confidential Evaluation Material to any tribunal or else stand liable for contempt or suffer other censure or penalty, you may disclose such information to such tribunal without liability hereunder provided that you comply with the notice provisions of this paragraph.
Although the Company will endeavor to include in the Confidential Evaluation Material information known to it which it believes to be relevant for the purpose of your investigation, you understand that neither the Company nor any of its Representatives will make any representation or warranty as to the accuracy or completeness of the Confidential Evaluation Material. You agree that neither the Company nor its Representatives shall have any liability to you or any of your Representatives resulting from the use of the Confidential Evaluation Material.
Neither you nor your affiliates nor any of your Agents or Investors have or will, without the prior written consent of the Company, enter into, directly or indirectly, any agreements, arrangements or understandings with any person (other than your Agents or Investors), with respect to a possible Transaction or a transaction involving any assets of the Company or that could otherwise affect such person’s decisions or actions with respect to a possible Transaction, provided that nothing in this Paragraph shall prohibit you, your affiliates and/or your Agents or Investors from engaging in discussions and negotiations with any person regarding a possible Transaction or any such other transaction.
In the event that you do not proceed with the transaction which is the subject of this letter within a reasonable time, you shall promptly, and in any event upon request, provide certified destruction of all written Confidential Evaluation Material and any other written material containing or reflecting any information in the Confidential Evaluation Material (whether prepared by the Company, its Representatives or otherwise) and will not retain any copies, extracts or other reproductions in whole or in part of such written material. All documents, memoranda, notes and other writings whatsoever prepared by you or your Representatives based on the information in the Confidential Evaluation Material shall be destroyed and such destruction shall be certified in writing to the Company by an authorized officer supervising such destruction.
You agree that unless and until a definitive agreement between you and the Company with respect to any transaction referred to in the first paragraph of this letter has been executed and delivered, neither you nor the Company will be under any legal obligation of any kind whatsoever with respect to such a transaction by virtue of this or any written or oral expression with respect to such a transaction by any of its Representatives or any other representative or advisor of you or the Company except, in the case of this letter, for the matters specifically agreed to herein. The agreement set forth in this paragraph may be modified or waived only by separate writing executed by you and the Company expressly so modifying or waiving such agreement.
This letter agreement shall be governed by and construed in accordance with the laws of the State of Delaware and you and your Representatives shall continue to be bound by your respective obligations of confidentiality under this letter agreement for two (2) years following the date hereof. If this letter correctly states your agreement with us, please confirm by signing in the space below.
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Document Name: Bionatus, LLC Investor Confidentiality Agreement
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