1018-00008 · Penterra Pharmaceuticals Corp · Engagement & Preliminary

confidentiality-agreement-nda.docx DOCUMENT M&A / Corporate

21 / 75 ← → ✕

Contract analysis Extract to table

MUTUAL CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT

by and between

PENTERRA PHARMACEUTICALS CORP.

and

VERIDIAN BIOSCIENCES, INC.

Dated as of March 4, 2024

MUTUAL CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT

This Mutual Confidentiality and Non-Disclosure Agreement (this "Agreement") is entered into as of March 4, 2024 (the "Effective Date"), by and between:

Penterra Pharmaceuticals Corp., a Delaware corporation, with its principal executive offices located at 1100 Meridian Boulevard, Suite 400, Princeton, New Jersey 08540 ("Penterra");

and

Veridian Biosciences, Inc., a Delaware corporation, with its principal office located at 550 Gateway Drive, Cambridge, Massachusetts 02142 (the "Company" or "Veridian").

Each of Penterra and Veridian is referred to herein individually as a "Party" and collectively as the "Parties."

RECITALS

WHEREAS, Penterra is a publicly traded specialty pharmaceutical company whose shares of common stock are listed on the Nasdaq Global Select Market under the ticker symbol "PPCA," and is engaged in the development, manufacture, and commercialization of pharmaceutical products across multiple therapeutic areas, including oncology, immunology, and rare diseases (collectively, the "Penterra Business");

WHEREAS, Veridian is a privately held, clinical-stage biotechnology company focused on the discovery and development of next-generation immuno-oncology therapeutics, leveraging its proprietary T-cell engager platform known as "VeriTCE," and is advancing a pipeline of product candidates designed to address significant unmet medical needs in oncology (the "Veridian Business");

WHEREAS, the Parties wish to explore and evaluate a possible negotiated transaction between them (the "Transaction"), which may include, without limitation, the acquisition by Penterra of all or a portion of the outstanding capital stock, membership interests, or assets of Veridian, or such other business combination, strategic collaboration, or investment as the Parties may mutually determine;

WHEREAS, in connection with the evaluation of the Transaction, each Party may disclose to the other Party, and to certain of the other Party's Representatives (as defined below), certain confidential and proprietary information, and each Party desires to establish the terms and conditions governing the use, disclosure, and protection of such information; and

WHEREAS, Ridgeway Partners LLC is acting as financial advisor to Veridian in connection with the potential Transaction and may, on behalf of Veridian, furnish Confidential Information to Penterra and its Representatives.

NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

SECTION 1: DEFINITIONS

1.1 "Confidential Information." As used in this Agreement, "Confidential Information" means all information, whether written, oral, electronic, visual, or in any other form or medium, that is furnished by or on behalf of the Disclosing Party (or any of its Representatives) to the Receiving Party (or any of its Representatives) in connection with the evaluation of the Transaction, whether furnished before, on, or after the date of this Agreement. Without limiting the generality of the foregoing, Confidential Information includes the following categories of information to the extent relating to the Disclosing Party or any of its subsidiaries or affiliates:

(a) financial information, including audited and unaudited financial statements, balance sheets, income statements, cash flow statements, budgets, financial models, projections, forecasts, and capital expenditure plans;

(b) business plans, strategic plans, marketing plans, product development timelines, and competitive analyses;

(c) customer and supplier information, including customer lists, vendor lists, pricing information, supply agreements, distribution arrangements, and related correspondence;

(d) regulatory submissions and correspondence, including investigational new drug applications ("INDs"), new drug applications ("NDAs"), biologics license applications ("BLAs"), and all correspondence with the U.S. Food and Drug Administration (the "FDA"), the European Medicines Agency ("EMA"), and any other domestic or foreign regulatory authority;

(e) clinical trial data, protocols, statistical analyses, interim results, safety data, efficacy data, clinical study reports, and all information relating to ongoing, planned, or completed clinical trials, including without limitation data relating to any investigational new drug applications;

(f) intellectual property information, including patents, patent applications (whether published or unpublished), trade secrets, know-how, inventions, discoveries, formulations, manufacturing processes, methods of use, compositions of matter, and all information relating to the VeriTCE platform and related patents, patent families, and prosecution histories;

(g) technical data, scientific research, laboratory notebooks, research plans, and preclinical data, including in vitro and in vivo study results;

(h) proprietary technology, software, algorithms, source code, databases, and data analytics platforms;

(i) personnel information, including organizational charts, employee rosters, compensation and benefits information, employment agreements, retention arrangements, and key personnel assessments;

(j) capitalization tables, equity ownership information, stockholder agreements, investor rights agreements, voting agreements, option plans, warrant registers, and related corporate governance documents;

(k) tax records, tax returns, tax planning documents, transfer pricing studies, and related correspondence with taxing authorities;

(l) contracts and agreements, including material commercial agreements, license agreements, collaboration agreements, joint venture agreements, settlement agreements, and litigation files;

(m) strategic plans, acquisition targets, pipeline assessments, and business development materials; and

(n) any other information that is designated as "confidential," "proprietary," or words of similar import by the Disclosing Party at the time of disclosure, or that the Receiving Party knows or reasonably should know is confidential or proprietary in nature.

Confidential Information shall also include all notes, analyses, compilations, studies, interpretations, memoranda, summaries, extracts, or other documents or materials prepared by the Receiving Party or any of its Representatives that contain, reflect, or are based upon, in whole or in part, any Confidential Information (collectively, "Derivative Materials"). Derivative Materials shall be deemed Confidential Information of the Disclosing Party for all purposes of this Agreement.

In addition, Confidential Information shall include the existence and content of discussions between the Parties regarding the Transaction, the terms or conditions or any other facts relating to the Transaction (including the status thereof), the fact that Confidential Information has been made available to either Party, and the fact that investigations, discussions, or negotiations are taking or have taken place concerning the Transaction (collectively, the "Transaction Information"). For the avoidance of doubt, the Transaction Information shall be treated as Confidential Information of both Parties and shall be subject to all restrictions and obligations set forth in this Agreement.

1.2 "Representatives." As used in this Agreement, "Representatives" means, with respect to a Party, such Party's directors, officers, employees, agents, accountants, attorneys, financial advisors, consultants (including scientific and clinical consultants), lenders, financing sources, and other advisors and representatives who are provided Confidential Information and who have a need to know such information in connection with the evaluation of the Transaction. Without limiting the generality of the foregoing:

(a) Penterra's Representatives include, among others, its accountants at Tarrant & Co., its attorneys at Calderwood & Harkness LLP, its financial advisors at Garrison Zanthor & Co., LLC, and its scientific and clinical consultants, including Broadleaf Scientific Consulting LLC;

(b) Veridian's Representatives include, among others, its accountants at Northbridge Accounting Group LLP, its attorneys at Zalcourt Archer & Cole LLP, and its financial advisors at Ridgeway Partners LLC; and

(c) The term "Representatives" shall also include potential financing sources and their respective representatives (including, without limitation, Summit Ridge Capital Partners, LP, Ironclad Trust Company, N.A., and their respective legal, financial, and other advisors), provided that such financing sources are bound by confidentiality obligations no less restrictive than those set forth in this Agreement, or are subject to customary confidentiality provisions contained in a commitment letter, fee letter, engagement letter, or similar agreement.

1.3 "Disclosing Party" and "Receiving Party." As used in this Agreement, "Disclosing Party" means the Party disclosing Confidential Information, and "Receiving Party" means the Party receiving Confidential Information. Given the mutual nature of this Agreement, each Party may act as both a Disclosing Party and a Receiving Party, and the obligations and restrictions set forth herein shall apply to each Party in both capacities.

1.4 "Person." As used in this Agreement, "Person" means any individual, corporation, partnership, limited partnership, limited liability company, joint venture, association, trust, unincorporated organization, governmental authority, regulatory body, or other entity of any kind or nature.

1.5 "Transaction." As used in this Agreement, "Transaction" has the meaning set forth in Recital C hereof, and includes any potential negotiated business combination, acquisition, merger, investment, strategic collaboration, licensing arrangement, or similar transaction between the Parties, in each case as may be mutually discussed and agreed upon by the Parties from time to time.

SECTION 2: USE AND DISCLOSURE OF CONFIDENTIAL INFORMATION

2.1 Confidentiality Obligations. The Receiving Party shall keep all Confidential Information strictly confidential and shall not disclose, publish, disseminate, or otherwise make available any Confidential Information to any Person, except as expressly permitted by this Agreement. Without limiting the generality of the foregoing, the Receiving Party shall not disclose Confidential Information to any Person other than its Representatives who (a) have a need to know such information for the sole purpose of evaluating, negotiating, or consummating the Transaction, and (b) have been informed of the confidential nature of such information and the terms and conditions of this Agreement. The Receiving Party shall be responsible for any breach or violation of the terms of this Agreement by any of its Representatives, and agrees, at its sole expense, to take all reasonable measures, including court proceedings, to restrain its Representatives from any prohibited or unauthorized disclosure or use of Confidential Information. The Receiving Party shall use at least the same degree of care to protect Confidential Information as it uses to protect its own confidential and proprietary information of a similar nature, but in no event less than a reasonable degree of care under the circumstances.

2.2 Permitted Use. Confidential Information shall be used by the Receiving Party and its Representatives solely for the purpose of evaluating, analyzing, negotiating, and, if applicable, consummating the Transaction, and for no other purpose whatsoever. Without limiting the foregoing, the Receiving Party shall not, and shall cause its Representatives not to, use any Confidential Information for competitive purposes, for any purpose that could be detrimental to the Disclosing Party, or in any manner unrelated to the evaluation of the Transaction. The Receiving Party acknowledges that any use of Confidential Information for purposes other than as expressly permitted by this Section 2.2 may cause irreparable harm to the Disclosing Party and may give rise to claims for damages and equitable relief as set forth in Section 10 hereof.

2.3 Disclosure to Representatives. Prior to disclosing any Confidential Information to any of its Representatives, the Receiving Party shall inform such Representative of the confidential nature of the information being disclosed and the terms and conditions of this Agreement, including, without limitation, the restrictions on disclosure, use, and handling of Confidential Information set forth herein. Each such Representative shall either (a) agree in writing to be bound by the terms of this Agreement (or terms at least as restrictive as those contained herein), or (b) be subject to professional or contractual obligations of confidentiality that are at least as restrictive as the obligations set forth in this Agreement. The Receiving Party shall maintain a record of the Representatives to whom Confidential Information has been disclosed and shall make such record available to the Disclosing Party upon reasonable request.

2.4 Disclosure to Financing Sources. Notwithstanding any other provision of this Agreement, Penterra may disclose Confidential Information to its potential financing sources (including, without limitation, Summit Ridge Capital Partners, LP, Ironclad Trust Company, N.A., and their respective legal, financial, and other advisors) in connection with the arrangement, negotiation, or documentation of financing for the Transaction, provided that such financing sources and their respective advisors are subject to customary confidentiality obligations contained in a commitment letter, fee letter, engagement letter, or separate confidentiality agreement, in each case with terms that are no less restrictive than the terms applicable to Confidential Information under customary practice for transactions of the type contemplated hereby. The Receiving Party shall be responsible for any breach of such confidentiality obligations by any such financing source or its advisors to the same extent as if such financing source or advisor were a Representative of the Receiving Party.

SECTION 3: EXCLUSIONS FROM CONFIDENTIAL INFORMATION

Notwithstanding anything to the contrary in this Agreement, the term "Confidential Information" shall not include information that the Receiving Party can demonstrate by clear and convincing evidence:

(a) is or becomes generally available to the public other than as a result of a disclosure by the Receiving Party or any of its Representatives in violation of this Agreement or any other obligation of confidentiality owed to the Disclosing Party;

(b) was already known to the Receiving Party on a non-confidential basis prior to the disclosure of such information by or on behalf of the Disclosing Party, as evidenced by written records of the Receiving Party existing at the time of such disclosure and not otherwise subject to any other obligation of confidentiality;

(c) is independently developed by the Receiving Party or any of its Representatives without reference to, reliance upon, or use of any Confidential Information, as evidenced by written records of the Receiving Party; or

(d) is or becomes available to the Receiving Party on a non-confidential basis from a source other than the Disclosing Party or its Representatives, provided that such source is not, to the Receiving Party's knowledge (after reasonable inquiry), bound by any contractual, legal, fiduciary, or other obligation of confidentiality to the Disclosing Party or any other Person with respect to such information.

The burden of establishing any of the foregoing exclusions shall rest with the Receiving Party claiming such exclusion. A specific disclosure of Confidential Information shall not be deemed to fall within any of the foregoing exclusions merely because such Confidential Information is embraced by more general information that is publicly available or in the possession of the Receiving Party. In addition, a combination of features shall not be deemed to fall within any of the foregoing exclusions merely because individual features are publicly available or in the possession of the Receiving Party, unless the combination itself, and its principle of operation, are publicly available or otherwise within the scope of one or more of the foregoing exclusions.

SECTION 4: COMPELLED DISCLOSURE

4.1 Legal Process. In the event that the Receiving Party or any of its Representatives is required by applicable law, regulation, or legal process (including any subpoena, civil investigative demand, interrogatory, request for production of documents, or similar process), or by the rules, regulations, or listing standards of any national securities exchange (including the Nasdaq Stock Market LLC) or self-regulatory organization, or by the order or request of any court, governmental authority, or regulatory body (including the U.S. Securities and Exchange Commission (the "SEC"), the U.S. Federal Trade Commission (the "FTC"), or the U.S. Department of Justice (the "DOJ")), to disclose any Confidential Information, the Receiving Party shall, to the extent legally permitted and practicable under the circumstances:

(a) provide the Disclosing Party with prompt written notice of such requirement or request (and, in any event, prior to any such disclosure if reasonably practicable), including the nature and scope of the information sought and the identity of the Person or authority seeking such disclosure, so that the Disclosing Party may seek a protective order, confidential treatment, or other appropriate remedy or relief;

(b) cooperate with the Disclosing Party, at the Disclosing Party's sole cost and expense (including reasonable attorneys' fees), in seeking a protective order, injunction, confidential treatment, or other appropriate remedy or relief to prevent or limit the disclosure of such Confidential Information;

(c) if, in the absence of a protective order or other remedy, disclosure is nonetheless legally required, disclose only that portion of the Confidential Information that is, in the reasonable opinion of the Receiving Party's legal counsel, legally required to be disclosed, and shall use commercially reasonable efforts to ensure that any Confidential Information so disclosed is accorded confidential treatment by the relevant court, tribunal, or governmental authority; and

(d) promptly provide the Disclosing Party with a copy of any Confidential Information so disclosed (to the extent legally permitted), together with a description of the circumstances of such disclosure.

For the avoidance of doubt, if the Receiving Party or any of its Representatives is unable to provide prior notice to the Disclosing Party because such notice is prohibited by applicable law or legal process (for example, in connection with a grand jury subpoena where disclosure of the subpoena itself is prohibited), the Receiving Party shall provide notice to the Disclosing Party as promptly as practicable after the restriction on notice is lifted or no longer applicable.

4.2 Regulatory Filings. Nothing in this Agreement shall prohibit or restrict either Party from making any filing, disclosure, or submission required by the SEC, the FTC, the DOJ, or any other governmental or regulatory authority, including any filing required under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the "HSR Act"), or any antitrust, competition, or securities law or regulation, provided that such Party shall use commercially reasonable efforts to seek confidential treatment for any Confidential Information included in any such filing, disclosure, or submission, and shall, to the extent legally permitted, notify the Disclosing Party prior to the inclusion of any Confidential Information in any such filing and provide the Disclosing Party with a reasonable opportunity to review and comment on the portions of such filing that contain or reference Confidential Information.

SECTION 5: RETURN AND DESTRUCTION OF CONFIDENTIAL INFORMATION

5.1 Obligation to Return or Destroy. Upon the written request of the Disclosing Party at any time, or upon the termination or expiration of this Agreement (whichever occurs first), the Receiving Party shall promptly (and in any event within ten (10) business days following such request, termination, or expiration):

(a) return to the Disclosing Party all Confidential Information in tangible form (including all documents, files, reports, data, records, media, and other materials containing or reflecting Confidential Information, together with all copies, reproductions, extracts, and summaries thereof); or

(b) at the Disclosing Party's election (or, if the Disclosing Party does not specify, at the Receiving Party's election), destroy all Confidential Information in tangible or electronic form (including all Derivative Materials), using methods of destruction reasonably designed to render such information permanently unreadable and unrecoverable, and certify such destruction in writing to the Disclosing Party by means of a certificate signed by an authorized officer of the Receiving Party confirming that all such Confidential Information has been destroyed in accordance with this Section 5.1.

5.2 Retained Copies Exception. Notwithstanding the provisions of Section 5.1, the Receiving Party and its Representatives may retain:

(a) copies of Confidential Information to the extent required to be retained by applicable law, regulation, rule, or order of any governmental authority or regulatory body, or by bona fide internal document retention policies or procedures that are applied consistently to the Receiving Party's own confidential information and are not adopted or modified for the purpose of avoiding the obligations of this Section 5;

(b) copies of Confidential Information stored on automatic electronic archiving, disaster recovery, or back-up systems (including cloud-based backup systems), provided that such copies are not intentionally accessed, reviewed, or used by the Receiving Party or its Representatives except as required by applicable law or regulation, and provided further that the Receiving Party shall use commercially reasonable efforts to ensure that such archived or backed-up copies are deleted or rendered inaccessible in the ordinary course of the Receiving Party's data management practices; and

(c) any Derivative Materials prepared by the Receiving Party's legal counsel (whether internal or external) for purposes of documenting, memorializing, or analyzing the Receiving Party's evaluation of the Transaction, to the extent that retention of such materials is necessary to comply with applicable professional responsibilities or regulatory requirements.

All Confidential Information retained by the Receiving Party or its Representatives pursuant to this Section 5.2 shall remain subject to all confidentiality and non-use obligations set forth in this Agreement for the duration of the survival period specified in Section 11.2 hereof, and shall not be used for any purpose other than compliance with applicable law, regulation, or professional obligation.

SECTION 6: NON-SOLICITATION OF EMPLOYEES

6.1 Non-Solicitation Covenant. For a period of eighteen (18) months from the date of this Agreement (the "Non-Solicitation Period"), neither Party shall, and each Party shall cause its controlled affiliates, subsidiaries, and Representatives not to, directly or indirectly, solicit for employment, hire, retain, or engage (whether as an employee, independent contractor, consultant, or otherwise) any employee of the other Party, or any person who was an employee of the other Party within the six (6) months immediately preceding such solicitation, hiring, retention, or engagement, with whom the soliciting Party (or any of its Representatives) first had contact, or about whom the soliciting Party (or any of its Representatives) first received Confidential Information, in connection with the evaluation of the Transaction. Without limiting the generality of the foregoing, this restriction shall apply specifically to the following key personnel of Veridian: Dr. Julian Marek (Chief Executive Officer), Dr. Priya Chandrasekaran (Chief Scientific Officer), Steven R. Kessler (Chief Financial Officer), Dr. Anne-Marie Fontaine (Vice President, Regulatory Affairs), and Rachel Stein-Goldberg (General Counsel), and to key personnel of Penterra identified in connection with the evaluation of the Transaction.

6.2 Exceptions. Notwithstanding the provisions of Section 6.1, the non-solicitation covenant set forth therein shall not apply to, or prohibit, the following:

(a) general solicitations of employment published through public advertisements (including print, online, or social media platforms), job postings, career fairs, or other recruitment efforts that are not specifically directed at, or targeted toward, the other Party's employees;

(b) the hiring of any employee of the other Party who contacts the soliciting Party (or any of its Representatives) on his or her own initiative and without any direct or indirect solicitation, encouragement, or inducement by the soliciting Party or any of its Representatives; or

(c) the hiring of any employee of the other Party through the use of an independent employment agency, executive search firm, or similar recruiting organization, provided that neither the soliciting Party nor any of its Representatives directed, requested, or encouraged such agency, firm, or organization to specifically solicit, target, or recruit such employee of the other Party.

For purposes of clarity, a general solicitation or recruitment effort shall not be deemed to be "specifically directed at" the other Party's employees solely because such solicitation or effort is directed at individuals with particular qualifications, skills, or experience that are common among the other Party's employees.

SECTION 7: STANDSTILL PROVISION

7.1 Standstill Obligations of Penterra. For a period of twelve (12) months from the date of this Agreement (the "Standstill Period"), unless specifically invited in writing by the Board of Directors of Veridian (acting through a resolution duly adopted by the Board or a duly authorized committee thereof), Penterra shall not, and shall cause its controlled affiliates, subsidiaries, and Representatives not to, directly or indirectly, without the prior written consent of the Board of Directors of Veridian:

(a) acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, by purchase, tender offer, exchange offer, merger, consolidation, business combination, recapitalization, restructuring, or in any other manner, beneficial ownership (as defined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) of any equity securities, equity-linked securities, debt securities, or any assets (other than products sold in the ordinary course of business) of Veridian or any of its subsidiaries, other than pursuant to the Transaction as mutually agreed by the Parties;

(b) make, or in any way participate, directly or indirectly, in any "solicitation" of "proxies" (as such terms are used in the proxy rules promulgated by the SEC under the Exchange Act), or any solicitation of written consents with respect to any voting securities or equity interests of Veridian, or seek to advise, encourage, or influence any Person with respect to the voting or disposition of any securities or equity interests of Veridian;

(c) seek to influence or control, in any manner whatsoever, the management, policies, operations, or Board of Directors of Veridian, including by (i) nominating, proposing, or seeking the election or appointment of any person to the Board of Directors of Veridian, (ii) proposing, seeking, or effecting the removal of any member of the Board of Directors of Veridian, or (iii) proposing or seeking to effect any change in the composition, size, or structure of the Board of Directors or management of Veridian;

(d) make any public announcement, proposal, or offer with respect to, or submit any proposal, expression of interest, or indication of interest for, any extraordinary transaction involving Veridian or any of its subsidiaries, or involving the securities, equity interests, or assets of Veridian or any of its subsidiaries, including any merger, consolidation, business combination, tender offer, exchange offer, recapitalization, restructuring, liquidation, dissolution, or similar transaction;

(e) form, join, or in any way participate in a "group" (within the meaning of Section 13(d)(3) of the Exchange Act and the rules and regulations promulgated thereunder) with any other Person for the purpose of acquiring, holding, voting, or disposing of any securities or equity interests of Veridian, or for the purpose of taking any action that would be restricted under this Section 7.1; or

(f) take any action, or make any statement or announcement (whether publicly or privately), that would reasonably be expected to require Veridian to make a public announcement or disclosure regarding the possibility of the Transaction, the existence of this Agreement, or any of the matters described in this Section 7.1.

Penterra further agrees that during the Standstill Period, Penterra shall not, and shall cause its controlled affiliates, subsidiaries, and Representatives not to, request or propose, whether publicly or privately, that Veridian or the Board of Directors of Veridian amend, waive, or terminate any provision of this Section 7 (including this sentence), unless such request or proposal is made on a confidential basis and in a manner that does not require Veridian to make any public disclosure with respect thereto.

7.2 Fall-Away Provision. Notwithstanding the provisions of Section 7.1, the standstill obligations set forth in Section 7.1 shall automatically and immediately terminate, without any action required by either Party, upon the occurrence of any of the following events:

(a) Veridian or any of its subsidiaries enters into a definitive agreement (including a merger agreement, stock purchase agreement, asset purchase agreement, or similar agreement) with any third party with respect to an Acquisition Transaction (as defined in Section 7.3 below); or

(b) a third party commences, or publicly announces its intention to commence, a tender offer or exchange offer for any of the equity securities or equity interests of Veridian, and the Board of Directors of Veridian recommends such offer to its stockholders or fails to recommend against such offer within ten (10) business days after the commencement thereof.

7.3 "Acquisition Transaction" Definition. As used in this Agreement, "Acquisition Transaction" means any of the following transactions or series of related transactions (other than the Transaction) involving Veridian or any of its subsidiaries: (a) any merger, consolidation, share exchange, or other business combination; (b) any tender offer or exchange offer for any equity securities or equity interests of Veridian; (c) any recapitalization, restructuring, liquidation, dissolution, or winding up; (d) any sale, lease, exchange, transfer, or other disposition of all or substantially all of the assets of Veridian and its subsidiaries, taken as a whole; or (e) any acquisition by any Person or "group" (within the meaning of Section 13(d)(3) of the Exchange Act) of beneficial ownership of more than fifteen percent (15%) of the outstanding equity securities or equity interests of Veridian.

SECTION 8: NO OBLIGATION TO PROCEED; NO REPRESENTATIONS

8.1 No Obligation. Nothing in this Agreement shall be construed as creating any obligation on the part of either Party to proceed with the Transaction or to enter into any definitive agreement, term sheet, letter of intent, or other binding or non-binding agreement with respect to the Transaction. The Parties acknowledge and agree that, except for the specific obligations set forth in this Agreement, no contract or agreement providing for the Transaction shall be deemed to exist between the Parties unless and until a definitive agreement has been executed and delivered by both Parties. Either Party may, in its sole and absolute discretion, terminate discussions and negotiations regarding the Transaction at any time, for any reason or for no reason, without liability to the other Party (other than with respect to the obligations set forth in this Agreement, which shall survive any such termination in accordance with their terms).

8.2 No Representation or Warranty. The Receiving Party acknowledges and agrees that neither the Disclosing Party nor any of its Representatives makes any representation or warranty, express or implied, as to the accuracy, completeness, reliability, or sufficiency of any Confidential Information disclosed hereunder or made available in connection with the evaluation of the Transaction, except as may be expressly set forth in a definitive agreement relating to the Transaction that is executed and delivered by both Parties. The Receiving Party acknowledges that it shall not be entitled to rely on the accuracy or completeness of any Confidential Information furnished hereunder, and shall be entitled to rely solely on such representations and warranties as may be expressly set forth in any such definitive agreement, subject to the terms, limitations, and conditions set forth therein.

Without limiting the generality of the foregoing, Veridian makes no representation or warranty, express or implied, regarding (a) the results, outcomes, or prospects of any preclinical studies or clinical trials, including, without limitation, the Marlowe Asset Management-2 Phase II clinical trial (ClinicalTrials.gov Identifier: NCT05837291) for VRD-4187, or any other product candidate in Veridian's pipeline, (b) the likelihood or timing of FDA approval, EMA approval, or any other regulatory approval of any product candidate, (c) the commercial viability, market potential, or commercial success of any product candidate, or (d) the patentability, validity, enforceability, or freedom to operate with respect to any intellectual property rights. Neither the Disclosing Party nor any of its Representatives shall have any liability to the Receiving Party or any of its Representatives relating to or arising from the use of, or reliance on, any Confidential Information or any errors, omissions, or inaccuracies therein.

8.3 No Waiver of Privileges. The disclosure of Confidential Information by either Party under this Agreement shall not be deemed a waiver of any attorney-client privilege, attorney work product protection, joint defense privilege, common interest privilege, or any other applicable privilege, immunity, or protection that may attach to such information. The Parties intend that, to the fullest extent permitted by applicable law, the disclosure of Confidential Information hereunder shall not constitute a waiver of any privilege or protection, and each Party reserves all rights to assert any such privilege or protection. Without limiting the foregoing, the Parties agree that the common interest doctrine shall apply to any communications or disclosures made in furtherance of the evaluation of the Transaction, to the extent such communications or disclosures would otherwise be protected by the attorney-client privilege or work product doctrine.

SECTION 9: SECURITIES LAW COMPLIANCE

9.1 Acknowledgment of Securities Laws. Each Party acknowledges that the Confidential Information disclosed hereunder may include material non-public information concerning Penterra, a publicly traded company whose shares of common stock are listed on the Nasdaq Global Select Market under the ticker symbol "PPCA." Each Party is aware, and shall advise its Representatives who receive Confidential Information, that applicable federal and state securities laws, including Section 10(b) of the Securities Exchange Act of 1934, as amended, Rule 10b-5 promulgated thereunder, and Section 14(e) of the Exchange Act, prohibit any Person who has received material non-public information concerning a company from (a) purchasing or selling any securities of such company (or securities of any other company whose value may be affected by such information), or (b) communicating such information to any other Person under circumstances in which it is reasonably foreseeable that such Person may purchase or sell securities of such company in reliance upon, or on the basis of, such information. Each Party is further aware that violations of applicable securities laws may result in significant civil and criminal penalties, including fines, disgorgement of profits, imprisonment, and private rights of action.

9.2 Compliance Covenant. Each Party agrees that it shall comply, and shall use its reasonable best efforts to cause its Representatives to comply, with all applicable federal and state securities laws, rules, and regulations in connection with the Transaction and the Confidential Information. Without limiting the foregoing, each Party agrees that it shall not, and shall use its reasonable best efforts to cause its Representatives not to, purchase or sell any securities of Penterra, or communicate material non-public information concerning Penterra to any Person, in violation of applicable securities laws, while in possession of Confidential Information that constitutes material non-public information.

SECTION 10: REMEDIES

10.1 Irreparable Harm; Equitable Relief. Each Party acknowledges and agrees that any breach or threatened breach of the provisions of this Agreement may cause the Disclosing Party irreparable injury and harm for which monetary damages alone would be an inadequate remedy. Accordingly, in the event of any such breach or threatened breach, the Disclosing Party shall be entitled, in addition to any other remedies available to it at law or in equity, to seek equitable relief, including temporary restraining orders, preliminary and permanent injunctions, and specific performance, in any court of competent jurisdiction, without the necessity of proving actual damages, irreparable harm (such irreparable harm being acknowledged and agreed by each Party), or inadequacy of monetary damages, and without the requirement of posting any bond, surety, or other security (any such requirement being hereby waived by each Party to the fullest extent permitted by applicable law). Each Party agrees that it shall not oppose the granting of equitable relief on the grounds that the Disclosing Party has an adequate remedy at law or that the injury to the Disclosing Party is not irreparable.

10.2 Cumulative Remedies. The rights and remedies of the Parties under this Agreement are cumulative and are in addition to, and not in substitution for, any other rights or remedies available to the Parties at law, in equity, or otherwise. No exercise of any right or remedy hereunder shall preclude the exercise of any other right or remedy, and no single or partial exercise of any right or remedy shall preclude any further or other exercise thereof or the exercise of any other right or remedy.

10.3 Receiving Party Liability for Representatives. The Receiving Party shall be fully liable and responsible for any breach of this Agreement by any of its Representatives, as if such breach had been committed by the Receiving Party itself. Without limiting the foregoing, in the event of any breach or threatened breach by a Representative of the Receiving Party, the Receiving Party agrees, at its sole cost and expense, to take all reasonable measures (including the institution and prosecution of legal proceedings against such Representative) to restrain such Representative from any prohibited, unauthorized, or unlawful disclosure or use of Confidential Information and to remedy any such breach.

SECTION 11: TERM AND TERMINATION

11.1 Term. This Agreement shall become effective as of the Effective Date and shall remain in full force and effect for a period of two (2) years from the Effective Date (the "Term"), unless (a) earlier terminated by the mutual written agreement of both Parties, or (b) superseded by the execution and delivery of a definitive agreement relating to the Transaction (in which case the confidentiality and non-disclosure provisions of such definitive agreement shall govern).

11.2 Survival. Notwithstanding the expiration or termination of this Agreement, the confidentiality and non-use obligations set forth in Section 2 of this Agreement and the obligations regarding the return or destruction of Confidential Information set forth in Section 5 of this Agreement shall survive the termination or expiration of this Agreement and shall remain in full force and effect for an additional period of one (1) year following such termination or expiration (that is, for a total period of three (3) years from the Effective Date of this Agreement). The non-solicitation covenant set forth in Section 6 and the standstill provision set forth in Section 7 shall each terminate in accordance with their respective terms (i.e., eighteen (18) months and twelve (12) months from the date of this Agreement, respectively), regardless of any earlier or later termination or expiration of this Agreement. Sections 3, 4, 8, 9, 10, and 12 shall survive any termination or expiration of this Agreement indefinitely or until their subject matter is fully performed or satisfied.

SECTION 12: MISCELLANEOUS

12.1 Governing Law. This Agreement shall be governed by, and construed, interpreted, and enforced in accordance with, the laws of the State of Delaware, without giving effect to any choice of law or conflict of laws rules, provisions, or principles (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Delaware.

12.2 Jurisdiction and Venue. Each Party hereby irrevocably and unconditionally submits to the exclusive jurisdiction of the Court of Chancery of the State of Delaware (or, if the Court of Chancery of the State of Delaware declines to accept jurisdiction over a particular matter, the Superior Court of the State of Delaware, or, if subject matter jurisdiction over such matter is vested exclusively in the federal courts, the United States District Court for the District of Delaware) for any action, suit, proceeding, claim, or dispute arising out of or relating to this Agreement or the transactions contemplated hereby, and each Party agrees that all claims in respect of any such action, suit, proceeding, claim, or dispute shall be heard and determined exclusively in such courts. Each Party hereby irrevocably and unconditionally waives (a) any objection that it may now or hereafter have to the laying of venue of any action, suit, proceeding, claim, or dispute in any such court, and (b) any claim or defense that any action, suit, proceeding, claim, or dispute brought in any such court has been brought in an inconvenient forum. Each Party consents to service of process in the manner provided for notices in Section 12.7 of this Agreement, provided that nothing in this Section 12.2 shall affect the right of any Party to serve legal process in any other manner permitted by applicable law.

12.3 Waiver of Jury Trial. EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, PROCEEDING, CLAIM, OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT, OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE CONFIDENTIAL INFORMATION, THE TRANSACTION, OR THE ACTIONS OF EITHER PARTY IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE, OR ENFORCEMENT OF THIS AGREEMENT. Each Party certifies and acknowledges that (a) no Representative of any other Party has represented, expressly or otherwise, that such other Party would not, in the event of any action, suit, or proceeding, seek to enforce the foregoing waiver, (b) each Party understands and has considered the implications of this waiver, (c) each Party makes this waiver voluntarily, and (d) each Party has been induced to enter into this Agreement by, among other things, the mutual waivers and certifications set forth in this Section 12.3.

12.4 Entire Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements, understandings, representations, warranties, negotiations, and discussions, whether oral or written, between the Parties (or any of their Representatives) with respect to the subject matter hereof. There are no representations, warranties, covenants, agreements, or understandings between the Parties relating to the subject matter hereof other than those expressly set forth or referred to in this Agreement.

12.5 Amendment and Waiver. This Agreement may not be amended, modified, supplemented, or waived, in whole or in part, except by a written instrument duly executed by an authorized representative of each Party. No failure or delay by either Party in exercising any right, power, or privilege under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power, or privilege preclude any other or further exercise thereof or the exercise of any other right, power, or privilege. No waiver of any provision of this Agreement shall be effective unless set forth in a written instrument signed by the Party against whom enforcement of such waiver is sought. Any such waiver shall be limited to the specific provision, circumstance, and occasion for which it is given and shall not be deemed a waiver of any other provision, circumstance, or occasion.

12.6 Assignment. Neither Party may assign or transfer this Agreement, or any of its rights, interests, or obligations hereunder, in whole or in part, by operation of law or otherwise, without the prior written consent of the other Party, and any attempted assignment or transfer without such consent shall be null, void, and of no force or effect; provided, however, that Penterra may, without the prior written consent of Veridian, assign its rights and obligations under this Agreement (a) to any wholly owned subsidiary or affiliate of Penterra, provided that Penterra shall remain jointly and severally liable with such assignee for all obligations of the Receiving Party under this Agreement, or (b) to any successor in interest to Penterra in connection with a merger, consolidation, reorganization, or sale of all or substantially all of the assets of Penterra, provided that such successor assumes all of Penterra's obligations under this Agreement. Subject to the foregoing, this Agreement shall be binding upon, and shall inure to the benefit of, the Parties and their respective successors and permitted assigns.

12.7 Notices. All notices, requests, demands, consents, and other communications required or permitted under this Agreement shall be in writing and shall be deemed duly given or made (a) when delivered by hand (with written confirmation of receipt), (b) when sent by electronic mail (with written confirmation of receipt by the recipient, which may include an automated receipt confirmation but shall not include an automated "out of office" or similar response), (c) on the business day following the date of deposit with a nationally recognized overnight courier service (such as Sundial Data Systems, ups, or Tarrant & Co.), with charges prepaid or billed to the sender's account, or (d) on the fifth (5th) business day following the date of mailing by certified or registered mail, return receipt requested, postage prepaid, in each case addressed as follows (or to such other address as either Party may designate by written notice to the other Party in accordance with this Section 12.7):

If to Penterra:

Penterra Pharmaceuticals Corp. 1100 Meridian Boulevard, Suite 400 Princeton, New Jersey 08540

Attention: Thomas F. Holbrook, General Counsel & Secretary

Email: tholbrook@penterra.com

with a copy (which shall not constitute notice) to:

Calderwood & Harkness LLP 200 Park Avenue, 42nd Floor New York, New York 10166

Attention: Oliver Mackenzie, Partner

Email: omackenzie@calderwoodharkness.com

If to Veridian:

Veridian Biosciences, Inc. 550 Gateway Drive Cambridge, Massachusetts 02142

Attention: Rachel Stein-Goldberg, General Counsel

Email: rstein-goldberg@veridianbio.com

with a copy (which shall not constitute notice) to:

Zalcourt Archer & Cole LLP One Federal Street, 30th Floor Boston, Massachusetts 02110

Attention: Rebecca Whitmore, Partner

Email: rwhitmore@lathamarcher.com

12.8 Severability. If any term, provision, covenant, or condition of this Agreement is held by a court of competent jurisdiction or other governmental authority to be invalid, illegal, void, or unenforceable, the remainder of the terms, provisions, covenants, and conditions of this Agreement shall remain in full force and effect and shall in no way be affected, impaired, or invalidated thereby, so long as the remaining provisions, taken together, are not inconsistent with, and adequately preserve, the economic substance of the transactions contemplated by this Agreement. Upon such determination that any term or other provision is invalid, illegal, void, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in an acceptable manner to the end that the purposes contemplated hereby are fulfilled to the greatest extent possible. To the extent permitted by applicable law, the invalid or unenforceable provision shall be deemed automatically modified to the minimum extent necessary to make it valid, legal, and enforceable, while preserving the original intent of the Parties.

12.9 Counterparts. This Agreement may be executed in one or more counterparts, each of which when so executed and delivered shall be deemed to be an original, and all of which counterparts, taken together, shall constitute one and the same agreement. Delivery of an executed counterpart of a signature page to this Agreement by electronic mail (including in portable document format (PDF)), facsimile, or other electronic transmission (including any electronic signature complying with the U.S. federal ESIGN Act of 2000, the Uniform Electronic Transactions Act, or any other applicable law) shall be deemed delivery of a manually executed counterpart and shall be effective as delivery of an original executed counterpart of this Agreement.

12.10 No Third-Party Beneficiaries. This Agreement is for the sole benefit of the Parties hereto and their respective Representatives, successors, and permitted assigns, and nothing in this Agreement, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement. Notwithstanding the foregoing, each Party's Representatives shall be deemed third-party beneficiaries of this Agreement solely for purposes of enforcement of the confidentiality obligations by the Disclosing Party, and nothing in this sentence shall be construed to confer upon any Representative any independent right to enforce this Agreement on its own behalf.

12.11 Construction. The headings and captions in this Agreement are included for convenience of reference only and shall not be given any substantive effect and shall not affect the construction or interpretation of this Agreement. All references herein to "Sections" are references to sections of this Agreement unless otherwise specified. The word "including" (and correlative words) means "including without limitation" and shall be construed as illustrative and not restrictive. The words "herein," "hereof," "hereunder," and "hereby" and other words of similar import refer to this Agreement as a whole and not to any particular Section or other subdivision. References to "days" shall mean calendar days unless otherwise specified as "business days." The use of the singular includes the plural and vice versa, and the use of any gender includes each other gender. This Agreement has been negotiated by the Parties with the benefit of legal representation and shall not be construed against either Party as the drafter hereof. Any rule of construction or interpretation to the effect that ambiguities are to be resolved against the drafting Party shall not be applicable to the construction or interpretation of this Agreement.

[SIGNATURE PAGE FOLLOWS]

IN WITNESS WHEREOF, the Parties have caused this Mutual Confidentiality and Non-Disclosure Agreement to be executed as of the date first written above by their respective duly authorized representatives.

PENTERRA PHARMACEUTICALS CORP.

By: ________

Name: Thomas F. Holbrook

Title: General Counsel & Secretary

Date: March 4, 2024

VERIDIAN BIOSCIENCES, INC.

By: ________

Name: Dr. Julian Marek

Title: Chief Executive Officer

Date: March 4, 2024

Prepared by Calderwood & Harkness LLP on behalf of Penterra Pharmaceuticals Corp.

MUTUAL CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT
by and between
PENTERRA PHARMACEUTICALS CORP.
and
VERIDIAN BIOSCIENCES, INC.
Dated as of March 4, 2024
MUTUAL CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT
This Mutual Confidentiality and Non-Disclosure Agreement (this "Agreement") is entered into as of March 4, 2024 (the "Effective Date"), by and between:
Penterra Pharmaceuticals Corp., a Delaware corporation, with its principal executive offices located at 1100 Meridian Boulevard, Suite 400, Princeton, New Jersey 08540 ("Penterra");
and
Veridian Biosciences, Inc., a Delaware corporation, with its principal office located at 550 Gateway Drive, Cambridge, Massachusetts 02142 (the "Company" or "Veridian").
Each of Penterra and Veridian is referred to herein individually as a "Party" and collectively as the "Parties."
RECITALS
WHEREAS, Penterra is a publicly traded specialty pharmaceutical company whose shares of common stock are listed on the Nasdaq Global Select Market under the ticker symbol "PPCA," and is engaged in the development, manufacture, and commercialization of pharmaceutical products across multiple therapeutic areas, including oncology, immunology, and rare diseases (collectively, the "Penterra Business");
WHEREAS, Veridian is a privately held, clinical-stage biotechnology company focused on the discovery and development of next-generation immuno-oncology therapeutics, leveraging its proprietary T-cell engager platform known as "VeriTCE," and is advancing a pipeline of product candidates designed to address significant unmet medical needs in oncology (the "Veridian Business");
WHEREAS, the Parties wish to explore and evaluate a possible negotiated transaction between them (the "Transaction"), which may include, without limitation, the acquisition by Penterra of all or a portion of the outstanding capital stock, membership interests, or assets of Veridian, or such other business combination, strategic collaboration, or investment as the Parties may mutually determine;
WHEREAS, in connection with the evaluation of the Transaction, each Party may disclose to the other Party, and to certain of the other Party's Representatives (as defined below), certain confidential and proprietary information, and each Party desires to establish the terms and conditions governing the use, disclosure, and protection of such information; and
WHEREAS, Ridgeway Partners LLC is acting as financial advisor to Veridian in connection with the potential Transaction and may, on behalf of Veridian, furnish Confidential Information to Penterra and its Representatives.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
SECTION 1: DEFINITIONS
1.1 "Confidential Information." As used in this Agreement, "Confidential Information" means all information, whether written, oral, electronic, visual, or in any other form or medium, that is furnished by or on behalf of the Disclosing Party (or any of its Representatives) to the Receiving Party (or any of its Representatives) in connection with the evaluation of the Transaction, whether furnished before, on, or after the date of this Agreement. Without limiting the generality of the foregoing, Confidential Information includes the following categories of information to the extent relating to the Disclosing Party or any of its subsidiaries or affiliates:
(a) financial information, including audited and unaudited financial statements, balance sheets, income statements, cash flow statements, budgets, financial models, projections, forecasts, and capital expenditure plans;
(b) business plans, strategic plans, marketing plans, product development timelines, and competitive analyses;
(c) customer and supplier information, including customer lists, vendor lists, pricing information, supply agreements, distribution arrangements, and related correspondence;
(d) regulatory submissions and correspondence, including investigational new drug applications ("INDs"), new drug applications ("NDAs"), biologics license applications ("BLAs"), and all correspondence with the U.S. Food and Drug Administration (the "FDA"), the European Medicines Agency ("EMA"), and any other domestic or foreign regulatory authority;
(e) clinical trial data, protocols, statistical analyses, interim results, safety data, efficacy data, clinical study reports, and all information relating to ongoing, planned, or completed clinical trials, including without limitation data relating to any investigational new drug applications;
(f) intellectual property information, including patents, patent applications (whether published or unpublished), trade secrets, know-how, inventions, discoveries, formulations, manufacturing processes, methods of use, compositions of matter, and all information relating to the VeriTCE platform and related patents, patent families, and prosecution histories;
(g) technical data, scientific research, laboratory notebooks, research plans, and preclinical data, including in vitro and in vivo study results;
(h) proprietary technology, software, algorithms, source code, databases, and data analytics platforms;
(i) personnel information, including organizational charts, employee rosters, compensation and benefits information, employment agreements, retention arrangements, and key personnel assessments;
(j) capitalization tables, equity ownership information, stockholder agreements, investor rights agreements, voting agreements, option plans, warrant registers, and related corporate governance documents;
(k) tax records, tax returns, tax planning documents, transfer pricing studies, and related correspondence with taxing authorities;
(l) contracts and agreements, including material commercial agreements, license agreements, collaboration agreements, joint venture agreements, settlement agreements, and litigation files;
(m) strategic plans, acquisition targets, pipeline assessments, and business development materials; and
(n) any other information that is designated as "confidential," "proprietary," or words of similar import by the Disclosing Party at the time of disclosure, or that the Receiving Party knows or reasonably should know is confidential or proprietary in nature.
Confidential Information shall also include all notes, analyses, compilations, studies, interpretations, memoranda, summaries, extracts, or other documents or materials prepared by the Receiving Party or any of its Representatives that contain, reflect, or are based upon, in whole or in part, any Confidential Information (collectively, "Derivative Materials"). Derivative Materials shall be deemed Confidential Information of the Disclosing Party for all purposes of this Agreement.
In addition, Confidential Information shall include the existence and content of discussions between the Parties regarding the Transaction, the terms or conditions or any other facts relating to the Transaction (including the status thereof), the fact that Confidential Information has been made available to either Party, and the fact that investigations, discussions, or negotiations are taking or have taken place concerning the Transaction (collectively, the "Transaction Information"). For the avoidance of doubt, the Transaction Information shall be treated as Confidential Information of both Parties and shall be subject to all restrictions and obligations set forth in this Agreement.
1.2 "Representatives." As used in this Agreement, "Representatives" means, with respect to a Party, such Party's directors, officers, employees, agents, accountants, attorneys, financial advisors, consultants (including scientific and clinical consultants), lenders, financing sources, and other advisors and representatives who are provided Confidential Information and who have a need to know such information in connection with the evaluation of the Transaction. Without limiting the generality of the foregoing:
(a) Penterra's Representatives include, among others, its accountants at Tarrant & Co., its attorneys at Calderwood & Harkness LLP, its financial advisors at Garrison Zanthor & Co., LLC, and its scientific and clinical consultants, including Broadleaf Scientific Consulting LLC;
(b) Veridian's Representatives include, among others, its accountants at Northbridge Accounting Group LLP, its attorneys at Zalcourt Archer & Cole LLP, and its financial advisors at Ridgeway Partners LLC; and
(c) The term "Representatives" shall also include potential financing sources and their respective representatives (including, without limitation, Summit Ridge Capital Partners, LP, Ironclad Trust Company, N.A., and their respective legal, financial, and other advisors), provided that such financing sources are bound by confidentiality obligations no less restrictive than those set forth in this Agreement, or are subject to customary confidentiality provisions contained in a commitment letter, fee letter, engagement letter, or similar agreement.
1.3 "Disclosing Party" and "Receiving Party." As used in this Agreement, "Disclosing Party" means the Party disclosing Confidential Information, and "Receiving Party" means the Party receiving Confidential Information. Given the mutual nature of this Agreement, each Party may act as both a Disclosing Party and a Receiving Party, and the obligations and restrictions set forth herein shall apply to each Party in both capacities.
1.4 "Person." As used in this Agreement, "Person" means any individual, corporation, partnership, limited partnership, limited liability company, joint venture, association, trust, unincorporated organization, governmental authority, regulatory body, or other entity of any kind or nature.
1.5 "Transaction." As used in this Agreement, "Transaction" has the meaning set forth in Recital C hereof, and includes any potential negotiated business combination, acquisition, merger, investment, strategic collaboration, licensing arrangement, or similar transaction between the Parties, in each case as may be mutually discussed and agreed upon by the Parties from time to time.
SECTION 2: USE AND DISCLOSURE OF CONFIDENTIAL INFORMATION
2.1 Confidentiality Obligations. The Receiving Party shall keep all Confidential Information strictly confidential and shall not disclose, publish, disseminate, or otherwise make available any Confidential Information to any Person, except as expressly permitted by this Agreement. Without limiting the generality of the foregoing, the Receiving Party shall not disclose Confidential Information to any Person other than its Representatives who (a) have a need to know such information for the sole purpose of evaluating, negotiating, or consummating the Transaction, and (b) have been informed of the confidential nature of such information and the terms and conditions of this Agreement. The Receiving Party shall be responsible for any breach or violation of the terms of this Agreement by any of its Representatives, and agrees, at its sole expense, to take all reasonable measures, including court proceedings, to restrain its Representatives from any prohibited or unauthorized disclosure or use of Confidential Information. The Receiving Party shall use at least the same degree of care to protect Confidential Information as it uses to protect its own confidential and proprietary information of a similar nature, but in no event less than a reasonable degree of care under the circumstances.
2.2 Permitted Use. Confidential Information shall be used by the Receiving Party and its Representatives solely for the purpose of evaluating, analyzing, negotiating, and, if applicable, consummating the Transaction, and for no other purpose whatsoever. Without limiting the foregoing, the Receiving Party shall not, and shall cause its Representatives not to, use any Confidential Information for competitive purposes, for any purpose that could be detrimental to the Disclosing Party, or in any manner unrelated to the evaluation of the Transaction. The Receiving Party acknowledges that any use of Confidential Information for purposes other than as expressly permitted by this Section 2.2 may cause irreparable harm to the Disclosing Party and may give rise to claims for damages and equitable relief as set forth in Section 10 hereof.
2.3 Disclosure to Representatives. Prior to disclosing any Confidential Information to any of its Representatives, the Receiving Party shall inform such Representative of the confidential nature of the information being disclosed and the terms and conditions of this Agreement, including, without limitation, the restrictions on disclosure, use, and handling of Confidential Information set forth herein. Each such Representative shall either (a) agree in writing to be bound by the terms of this Agreement (or terms at least as restrictive as those contained herein), or (b) be subject to professional or contractual obligations of confidentiality that are at least as restrictive as the obligations set forth in this Agreement. The Receiving Party shall maintain a record of the Representatives to whom Confidential Information has been disclosed and shall make such record available to the Disclosing Party upon reasonable request.
2.4 Disclosure to Financing Sources. Notwithstanding any other provision of this Agreement, Penterra may disclose Confidential Information to its potential financing sources (including, without limitation, Summit Ridge Capital Partners, LP, Ironclad Trust Company, N.A., and their respective legal, financial, and other advisors) in connection with the arrangement, negotiation, or documentation of financing for the Transaction, provided that such financing sources and their respective advisors are subject to customary confidentiality obligations contained in a commitment letter, fee letter, engagement letter, or separate confidentiality agreement, in each case with terms that are no less restrictive than the terms applicable to Confidential Information under customary practice for transactions of the type contemplated hereby. The Receiving Party shall be responsible for any breach of such confidentiality obligations by any such financing source or its advisors to the same extent as if such financing source or advisor were a Representative of the Receiving Party.
SECTION 3: EXCLUSIONS FROM CONFIDENTIAL INFORMATION
Notwithstanding anything to the contrary in this Agreement, the term "Confidential Information" shall not include information that the Receiving Party can demonstrate by clear and convincing evidence:
(a) is or becomes generally available to the public other than as a result of a disclosure by the Receiving Party or any of its Representatives in violation of this Agreement or any other obligation of confidentiality owed to the Disclosing Party;
(b) was already known to the Receiving Party on a non-confidential basis prior to the disclosure of such information by or on behalf of the Disclosing Party, as evidenced by written records of the Receiving Party existing at the time of such disclosure and not otherwise subject to any other obligation of confidentiality;
(c) is independently developed by the Receiving Party or any of its Representatives without reference to, reliance upon, or use of any Confidential Information, as evidenced by written records of the Receiving Party; or
(d) is or becomes available to the Receiving Party on a non-confidential basis from a source other than the Disclosing Party or its Representatives, provided that such source is not, to the Receiving Party's knowledge (after reasonable inquiry), bound by any contractual, legal, fiduciary, or other obligation of confidentiality to the Disclosing Party or any other Person with respect to such information.
The burden of establishing any of the foregoing exclusions shall rest with the Receiving Party claiming such exclusion. A specific disclosure of Confidential Information shall not be deemed to fall within any of the foregoing exclusions merely because such Confidential Information is embraced by more general information that is publicly available or in the possession of the Receiving Party. In addition, a combination of features shall not be deemed to fall within any of the foregoing exclusions merely because individual features are publicly available or in the possession of the Receiving Party, unless the combination itself, and its principle of operation, are publicly available or otherwise within the scope of one or more of the foregoing exclusions.
SECTION 4: COMPELLED DISCLOSURE
4.1 Legal Process. In the event that the Receiving Party or any of its Representatives is required by applicable law, regulation, or legal process (including any subpoena, civil investigative demand, interrogatory, request for production of documents, or similar process), or by the rules, regulations, or listing standards of any national securities exchange (including the Nasdaq Stock Market LLC) or self-regulatory organization, or by the order or request of any court, governmental authority, or regulatory body (including the U.S. Securities and Exchange Commission (the "SEC"), the U.S. Federal Trade Commission (the "FTC"), or the U.S. Department of Justice (the "DOJ")), to disclose any Confidential Information, the Receiving Party shall, to the extent legally permitted and practicable under the circumstances:
(a) provide the Disclosing Party with prompt written notice of such requirement or request (and, in any event, prior to any such disclosure if reasonably practicable), including the nature and scope of the information sought and the identity of the Person or authority seeking such disclosure, so that the Disclosing Party may seek a protective order, confidential treatment, or other appropriate remedy or relief;
(b) cooperate with the Disclosing Party, at the Disclosing Party's sole cost and expense (including reasonable attorneys' fees), in seeking a protective order, injunction, confidential treatment, or other appropriate remedy or relief to prevent or limit the disclosure of such Confidential Information;
(c) if, in the absence of a protective order or other remedy, disclosure is nonetheless legally required, disclose only that portion of the Confidential Information that is, in the reasonable opinion of the Receiving Party's legal counsel, legally required to be disclosed, and shall use commercially reasonable efforts to ensure that any Confidential Information so disclosed is accorded confidential treatment by the relevant court, tribunal, or governmental authority; and
(d) promptly provide the Disclosing Party with a copy of any Confidential Information so disclosed (to the extent legally permitted), together with a description of the circumstances of such disclosure.
For the avoidance of doubt, if the Receiving Party or any of its Representatives is unable to provide prior notice to the Disclosing Party because such notice is prohibited by applicable law or legal process (for example, in connection with a grand jury subpoena where disclosure of the subpoena itself is prohibited), the Receiving Party shall provide notice to the Disclosing Party as promptly as practicable after the restriction on notice is lifted or no longer applicable.
4.2 Regulatory Filings. Nothing in this Agreement shall prohibit or restrict either Party from making any filing, disclosure, or submission required by the SEC, the FTC, the DOJ, or any other governmental or regulatory authority, including any filing required under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the "HSR Act"), or any antitrust, competition, or securities law or regulation, provided that such Party shall use commercially reasonable efforts to seek confidential treatment for any Confidential Information included in any such filing, disclosure, or submission, and shall, to the extent legally permitted, notify the Disclosing Party prior to the inclusion of any Confidential Information in any such filing and provide the Disclosing Party with a reasonable opportunity to review and comment on the portions of such filing that contain or reference Confidential Information.
SECTION 5: RETURN AND DESTRUCTION OF CONFIDENTIAL INFORMATION
5.1 Obligation to Return or Destroy. Upon the written request of the Disclosing Party at any time, or upon the termination or expiration of this Agreement (whichever occurs first), the Receiving Party shall promptly (and in any event within ten (10) business days following such request, termination, or expiration):
(a) return to the Disclosing Party all Confidential Information in tangible form (including all documents, files, reports, data, records, media, and other materials containing or reflecting Confidential Information, together with all copies, reproductions, extracts, and summaries thereof); or
(b) at the Disclosing Party's election (or, if the Disclosing Party does not specify, at the Receiving Party's election), destroy all Confidential Information in tangible or electronic form (including all Derivative Materials), using methods of destruction reasonably designed to render such information permanently unreadable and unrecoverable, and certify such destruction in writing to the Disclosing Party by means of a certificate signed by an authorized officer of the Receiving Party confirming that all such Confidential Information has been destroyed in accordance with this Section 5.1.
5.2 Retained Copies Exception. Notwithstanding the provisions of Section 5.1, the Receiving Party and its Representatives may retain:
(a) copies of Confidential Information to the extent required to be retained by applicable law, regulation, rule, or order of any governmental authority or regulatory body, or by bona fide internal document retention policies or procedures that are applied consistently to the Receiving Party's own confidential information and are not adopted or modified for the purpose of avoiding the obligations of this Section 5;
(b) copies of Confidential Information stored on automatic electronic archiving, disaster recovery, or back-up systems (including cloud-based backup systems), provided that such copies are not intentionally accessed, reviewed, or used by the Receiving Party or its Representatives except as required by applicable law or regulation, and provided further that the Receiving Party shall use commercially reasonable efforts to ensure that such archived or backed-up copies are deleted or rendered inaccessible in the ordinary course of the Receiving Party's data management practices; and
(c) any Derivative Materials prepared by the Receiving Party's legal counsel (whether internal or external) for purposes of documenting, memorializing, or analyzing the Receiving Party's evaluation of the Transaction, to the extent that retention of such materials is necessary to comply with applicable professional responsibilities or regulatory requirements.
All Confidential Information retained by the Receiving Party or its Representatives pursuant to this Section 5.2 shall remain subject to all confidentiality and non-use obligations set forth in this Agreement for the duration of the survival period specified in Section 11.2 hereof, and shall not be used for any purpose other than compliance with applicable law, regulation, or professional obligation.
SECTION 6: NON-SOLICITATION OF EMPLOYEES
6.1 Non-Solicitation Covenant. For a period of eighteen (18) months from the date of this Agreement (the "Non-Solicitation Period"), neither Party shall, and each Party shall cause its controlled affiliates, subsidiaries, and Representatives not to, directly or indirectly, solicit for employment, hire, retain, or engage (whether as an employee, independent contractor, consultant, or otherwise) any employee of the other Party, or any person who was an employee of the other Party within the six (6) months immediately preceding such solicitation, hiring, retention, or engagement, with whom the soliciting Party (or any of its Representatives) first had contact, or about whom the soliciting Party (or any of its Representatives) first received Confidential Information, in connection with the evaluation of the Transaction. Without limiting the generality of the foregoing, this restriction shall apply specifically to the following key personnel of Veridian: Dr. Julian Marek (Chief Executive Officer), Dr. Priya Chandrasekaran (Chief Scientific Officer), Steven R. Kessler (Chief Financial Officer), Dr. Anne-Marie Fontaine (Vice President, Regulatory Affairs), and Rachel Stein-Goldberg (General Counsel), and to key personnel of Penterra identified in connection with the evaluation of the Transaction.
6.2 Exceptions. Notwithstanding the provisions of Section 6.1, the non-solicitation covenant set forth therein shall not apply to, or prohibit, the following:
(a) general solicitations of employment published through public advertisements (including print, online, or social media platforms), job postings, career fairs, or other recruitment efforts that are not specifically directed at, or targeted toward, the other Party's employees;
(b) the hiring of any employee of the other Party who contacts the soliciting Party (or any of its Representatives) on his or her own initiative and without any direct or indirect solicitation, encouragement, or inducement by the soliciting Party or any of its Representatives; or
(c) the hiring of any employee of the other Party through the use of an independent employment agency, executive search firm, or similar recruiting organization, provided that neither the soliciting Party nor any of its Representatives directed, requested, or encouraged such agency, firm, or organization to specifically solicit, target, or recruit such employee of the other Party.
For purposes of clarity, a general solicitation or recruitment effort shall not be deemed to be "specifically directed at" the other Party's employees solely because such solicitation or effort is directed at individuals with particular qualifications, skills, or experience that are common among the other Party's employees.
SECTION 7: STANDSTILL PROVISION
7.1 Standstill Obligations of Penterra. For a period of twelve (12) months from the date of this Agreement (the "Standstill Period"), unless specifically invited in writing by the Board of Directors of Veridian (acting through a resolution duly adopted by the Board or a duly authorized committee thereof), Penterra shall not, and shall cause its controlled affiliates, subsidiaries, and Representatives not to, directly or indirectly, without the prior written consent of the Board of Directors of Veridian:
(a) acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, by purchase, tender offer, exchange offer, merger, consolidation, business combination, recapitalization, restructuring, or in any other manner, beneficial ownership (as defined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) of any equity securities, equity-linked securities, debt securities, or any assets (other than products sold in the ordinary course of business) of Veridian or any of its subsidiaries, other than pursuant to the Transaction as mutually agreed by the Parties;
(b) make, or in any way participate, directly or indirectly, in any "solicitation" of "proxies" (as such terms are used in the proxy rules promulgated by the SEC under the Exchange Act), or any solicitation of written consents with respect to any voting securities or equity interests of Veridian, or seek to advise, encourage, or influence any Person with respect to the voting or disposition of any securities or equity interests of Veridian;
(c) seek to influence or control, in any manner whatsoever, the management, policies, operations, or Board of Directors of Veridian, including by (i) nominating, proposing, or seeking the election or appointment of any person to the Board of Directors of Veridian, (ii) proposing, seeking, or effecting the removal of any member of the Board of Directors of Veridian, or (iii) proposing or seeking to effect any change in the composition, size, or structure of the Board of Directors or management of Veridian;
(d) make any public announcement, proposal, or offer with respect to, or submit any proposal, expression of interest, or indication of interest for, any extraordinary transaction involving Veridian or any of its subsidiaries, or involving the securities, equity interests, or assets of Veridian or any of its subsidiaries, including any merger, consolidation, business combination, tender offer, exchange offer, recapitalization, restructuring, liquidation, dissolution, or similar transaction;
(e) form, join, or in any way participate in a "group" (within the meaning of Section 13(d)(3) of the Exchange Act and the rules and regulations promulgated thereunder) with any other Person for the purpose of acquiring, holding, voting, or disposing of any securities or equity interests of Veridian, or for the purpose of taking any action that would be restricted under this Section 7.1; or
(f) take any action, or make any statement or announcement (whether publicly or privately), that would reasonably be expected to require Veridian to make a public announcement or disclosure regarding the possibility of the Transaction, the existence of this Agreement, or any of the matters described in this Section 7.1.
Penterra further agrees that during the Standstill Period, Penterra shall not, and shall cause its controlled affiliates, subsidiaries, and Representatives not to, request or propose, whether publicly or privately, that Veridian or the Board of Directors of Veridian amend, waive, or terminate any provision of this Section 7 (including this sentence), unless such request or proposal is made on a confidential basis and in a manner that does not require Veridian to make any public disclosure with respect thereto.
7.2 Fall-Away Provision. Notwithstanding the provisions of Section 7.1, the standstill obligations set forth in Section 7.1 shall automatically and immediately terminate, without any action required by either Party, upon the occurrence of any of the following events:
(a) Veridian or any of its subsidiaries enters into a definitive agreement (including a merger agreement, stock purchase agreement, asset purchase agreement, or similar agreement) with any third party with respect to an Acquisition Transaction (as defined in Section 7.3 below); or
(b) a third party commences, or publicly announces its intention to commence, a tender offer or exchange offer for any of the equity securities or equity interests of Veridian, and the Board of Directors of Veridian recommends such offer to its stockholders or fails to recommend against such offer within ten (10) business days after the commencement thereof.
7.3 "Acquisition Transaction" Definition. As used in this Agreement, "Acquisition Transaction" means any of the following transactions or series of related transactions (other than the Transaction) involving Veridian or any of its subsidiaries: (a) any merger, consolidation, share exchange, or other business combination; (b) any tender offer or exchange offer for any equity securities or equity interests of Veridian; (c) any recapitalization, restructuring, liquidation, dissolution, or winding up; (d) any sale, lease, exchange, transfer, or other disposition of all or substantially all of the assets of Veridian and its subsidiaries, taken as a whole; or (e) any acquisition by any Person or "group" (within the meaning of Section 13(d)(3) of the Exchange Act) of beneficial ownership of more than fifteen percent (15%) of the outstanding equity securities or equity interests of Veridian.
SECTION 8: NO OBLIGATION TO PROCEED; NO REPRESENTATIONS
8.1 No Obligation. Nothing in this Agreement shall be construed as creating any obligation on the part of either Party to proceed with the Transaction or to enter into any definitive agreement, term sheet, letter of intent, or other binding or non-binding agreement with respect to the Transaction. The Parties acknowledge and agree that, except for the specific obligations set forth in this Agreement, no contract or agreement providing for the Transaction shall be deemed to exist between the Parties unless and until a definitive agreement has been executed and delivered by both Parties. Either Party may, in its sole and absolute discretion, terminate discussions and negotiations regarding the Transaction at any time, for any reason or for no reason, without liability to the other Party (other than with respect to the obligations set forth in this Agreement, which shall survive any such termination in accordance with their terms).
8.2 No Representation or Warranty. The Receiving Party acknowledges and agrees that neither the Disclosing Party nor any of its Representatives makes any representation or warranty, express or implied, as to the accuracy, completeness, reliability, or sufficiency of any Confidential Information disclosed hereunder or made available in connection with the evaluation of the Transaction, except as may be expressly set forth in a definitive agreement relating to the Transaction that is executed and delivered by both Parties. The Receiving Party acknowledges that it shall not be entitled to rely on the accuracy or completeness of any Confidential Information furnished hereunder, and shall be entitled to rely solely on such representations and warranties as may be expressly set forth in any such definitive agreement, subject to the terms, limitations, and conditions set forth therein.
Without limiting the generality of the foregoing, Veridian makes no representation or warranty, express or implied, regarding (a) the results, outcomes, or prospects of any preclinical studies or clinical trials, including, without limitation, the Marlowe Asset Management-2 Phase II clinical trial (ClinicalTrials.gov Identifier: NCT05837291) for VRD-4187, or any other product candidate in Veridian's pipeline, (b) the likelihood or timing of FDA approval, EMA approval, or any other regulatory approval of any product candidate, (c) the commercial viability, market potential, or commercial success of any product candidate, or (d) the patentability, validity, enforceability, or freedom to operate with respect to any intellectual property rights. Neither the Disclosing Party nor any of its Representatives shall have any liability to the Receiving Party or any of its Representatives relating to or arising from the use of, or reliance on, any Confidential Information or any errors, omissions, or inaccuracies therein.
8.3 No Waiver of Privileges. The disclosure of Confidential Information by either Party under this Agreement shall not be deemed a waiver of any attorney-client privilege, attorney work product protection, joint defense privilege, common interest privilege, or any other applicable privilege, immunity, or protection that may attach to such information. The Parties intend that, to the fullest extent permitted by applicable law, the disclosure of Confidential Information hereunder shall not constitute a waiver of any privilege or protection, and each Party reserves all rights to assert any such privilege or protection. Without limiting the foregoing, the Parties agree that the common interest doctrine shall apply to any communications or disclosures made in furtherance of the evaluation of the Transaction, to the extent such communications or disclosures would otherwise be protected by the attorney-client privilege or work product doctrine.
SECTION 9: SECURITIES LAW COMPLIANCE
9.1 Acknowledgment of Securities Laws. Each Party acknowledges that the Confidential Information disclosed hereunder may include material non-public information concerning Penterra, a publicly traded company whose shares of common stock are listed on the Nasdaq Global Select Market under the ticker symbol "PPCA." Each Party is aware, and shall advise its Representatives who receive Confidential Information, that applicable federal and state securities laws, including Section 10(b) of the Securities Exchange Act of 1934, as amended, Rule 10b-5 promulgated thereunder, and Section 14(e) of the Exchange Act, prohibit any Person who has received material non-public information concerning a company from (a) purchasing or selling any securities of such company (or securities of any other company whose value may be affected by such information), or (b) communicating such information to any other Person under circumstances in which it is reasonably foreseeable that such Person may purchase or sell securities of such company in reliance upon, or on the basis of, such information. Each Party is further aware that violations of applicable securities laws may result in significant civil and criminal penalties, including fines, disgorgement of profits, imprisonment, and private rights of action.
9.2 Compliance Covenant. Each Party agrees that it shall comply, and shall use its reasonable best efforts to cause its Representatives to comply, with all applicable federal and state securities laws, rules, and regulations in connection with the Transaction and the Confidential Information. Without limiting the foregoing, each Party agrees that it shall not, and shall use its reasonable best efforts to cause its Representatives not to, purchase or sell any securities of Penterra, or communicate material non-public information concerning Penterra to any Person, in violation of applicable securities laws, while in possession of Confidential Information that constitutes material non-public information.
SECTION 10: REMEDIES
10.1 Irreparable Harm; Equitable Relief. Each Party acknowledges and agrees that any breach or threatened breach of the provisions of this Agreement may cause the Disclosing Party irreparable injury and harm for which monetary damages alone would be an inadequate remedy. Accordingly, in the event of any such breach or threatened breach, the Disclosing Party shall be entitled, in addition to any other remedies available to it at law or in equity, to seek equitable relief, including temporary restraining orders, preliminary and permanent injunctions, and specific performance, in any court of competent jurisdiction, without the necessity of proving actual damages, irreparable harm (such irreparable harm being acknowledged and agreed by each Party), or inadequacy of monetary damages, and without the requirement of posting any bond, surety, or other security (any such requirement being hereby waived by each Party to the fullest extent permitted by applicable law). Each Party agrees that it shall not oppose the granting of equitable relief on the grounds that the Disclosing Party has an adequate remedy at law or that the injury to the Disclosing Party is not irreparable.
10.2 Cumulative Remedies. The rights and remedies of the Parties under this Agreement are cumulative and are in addition to, and not in substitution for, any other rights or remedies available to the Parties at law, in equity, or otherwise. No exercise of any right or remedy hereunder shall preclude the exercise of any other right or remedy, and no single or partial exercise of any right or remedy shall preclude any further or other exercise thereof or the exercise of any other right or remedy.
10.3 Receiving Party Liability for Representatives. The Receiving Party shall be fully liable and responsible for any breach of this Agreement by any of its Representatives, as if such breach had been committed by the Receiving Party itself. Without limiting the foregoing, in the event of any breach or threatened breach by a Representative of the Receiving Party, the Receiving Party agrees, at its sole cost and expense, to take all reasonable measures (including the institution and prosecution of legal proceedings against such Representative) to restrain such Representative from any prohibited, unauthorized, or unlawful disclosure or use of Confidential Information and to remedy any such breach.
SECTION 11: TERM AND TERMINATION
11.1 Term. This Agreement shall become effective as of the Effective Date and shall remain in full force and effect for a period of two (2) years from the Effective Date (the "Term"), unless (a) earlier terminated by the mutual written agreement of both Parties, or (b) superseded by the execution and delivery of a definitive agreement relating to the Transaction (in which case the confidentiality and non-disclosure provisions of such definitive agreement shall govern).
11.2 Survival. Notwithstanding the expiration or termination of this Agreement, the confidentiality and non-use obligations set forth in Section 2 of this Agreement and the obligations regarding the return or destruction of Confidential Information set forth in Section 5 of this Agreement shall survive the termination or expiration of this Agreement and shall remain in full force and effect for an additional period of one (1) year following such termination or expiration (that is, for a total period of three (3) years from the Effective Date of this Agreement). The non-solicitation covenant set forth in Section 6 and the standstill provision set forth in Section 7 shall each terminate in accordance with their respective terms (i.e., eighteen (18) months and twelve (12) months from the date of this Agreement, respectively), regardless of any earlier or later termination or expiration of this Agreement. Sections 3, 4, 8, 9, 10, and 12 shall survive any termination or expiration of this Agreement indefinitely or until their subject matter is fully performed or satisfied.
SECTION 12: MISCELLANEOUS
12.1 Governing Law. This Agreement shall be governed by, and construed, interpreted, and enforced in accordance with, the laws of the State of Delaware, without giving effect to any choice of law or conflict of laws rules, provisions, or principles (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Delaware.
12.2 Jurisdiction and Venue. Each Party hereby irrevocably and unconditionally submits to the exclusive jurisdiction of the Court of Chancery of the State of Delaware (or, if the Court of Chancery of the State of Delaware declines to accept jurisdiction over a particular matter, the Superior Court of the State of Delaware, or, if subject matter jurisdiction over such matter is vested exclusively in the federal courts, the United States District Court for the District of Delaware) for any action, suit, proceeding, claim, or dispute arising out of or relating to this Agreement or the transactions contemplated hereby, and each Party agrees that all claims in respect of any such action, suit, proceeding, claim, or dispute shall be heard and determined exclusively in such courts. Each Party hereby irrevocably and unconditionally waives (a) any objection that it may now or hereafter have to the laying of venue of any action, suit, proceeding, claim, or dispute in any such court, and (b) any claim or defense that any action, suit, proceeding, claim, or dispute brought in any such court has been brought in an inconvenient forum. Each Party consents to service of process in the manner provided for notices in Section 12.7 of this Agreement, provided that nothing in this Section 12.2 shall affect the right of any Party to serve legal process in any other manner permitted by applicable law.
12.3 Waiver of Jury Trial. EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, PROCEEDING, CLAIM, OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT, OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE CONFIDENTIAL INFORMATION, THE TRANSACTION, OR THE ACTIONS OF EITHER PARTY IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE, OR ENFORCEMENT OF THIS AGREEMENT. Each Party certifies and acknowledges that (a) no Representative of any other Party has represented, expressly or otherwise, that such other Party would not, in the event of any action, suit, or proceeding, seek to enforce the foregoing waiver, (b) each Party understands and has considered the implications of this waiver, (c) each Party makes this waiver voluntarily, and (d) each Party has been induced to enter into this Agreement by, among other things, the mutual waivers and certifications set forth in this Section 12.3.
12.4 Entire Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements, understandings, representations, warranties, negotiations, and discussions, whether oral or written, between the Parties (or any of their Representatives) with respect to the subject matter hereof. There are no representations, warranties, covenants, agreements, or understandings between the Parties relating to the subject matter hereof other than those expressly set forth or referred to in this Agreement.
12.5 Amendment and Waiver. This Agreement may not be amended, modified, supplemented, or waived, in whole or in part, except by a written instrument duly executed by an authorized representative of each Party. No failure or delay by either Party in exercising any right, power, or privilege under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power, or privilege preclude any other or further exercise thereof or the exercise of any other right, power, or privilege. No waiver of any provision of this Agreement shall be effective unless set forth in a written instrument signed by the Party against whom enforcement of such waiver is sought. Any such waiver shall be limited to the specific provision, circumstance, and occasion for which it is given and shall not be deemed a waiver of any other provision, circumstance, or occasion.
12.6 Assignment. Neither Party may assign or transfer this Agreement, or any of its rights, interests, or obligations hereunder, in whole or in part, by operation of law or otherwise, without the prior written consent of the other Party, and any attempted assignment or transfer without such consent shall be null, void, and of no force or effect; provided, however, that Penterra may, without the prior written consent of Veridian, assign its rights and obligations under this Agreement (a) to any wholly owned subsidiary or affiliate of Penterra, provided that Penterra shall remain jointly and severally liable with such assignee for all obligations of the Receiving Party under this Agreement, or (b) to any successor in interest to Penterra in connection with a merger, consolidation, reorganization, or sale of all or substantially all of the assets of Penterra, provided that such successor assumes all of Penterra's obligations under this Agreement. Subject to the foregoing, this Agreement shall be binding upon, and shall inure to the benefit of, the Parties and their respective successors and permitted assigns.
12.7 Notices. All notices, requests, demands, consents, and other communications required or permitted under this Agreement shall be in writing and shall be deemed duly given or made (a) when delivered by hand (with written confirmation of receipt), (b) when sent by electronic mail (with written confirmation of receipt by the recipient, which may include an automated receipt confirmation but shall not include an automated "out of office" or similar response), (c) on the business day following the date of deposit with a nationally recognized overnight courier service (such as Sundial Data Systems, ups, or Tarrant & Co.), with charges prepaid or billed to the sender's account, or (d) on the fifth (5th) business day following the date of mailing by certified or registered mail, return receipt requested, postage prepaid, in each case addressed as follows (or to such other address as either Party may designate by written notice to the other Party in accordance with this Section 12.7):
If to Penterra:
Penterra Pharmaceuticals Corp. 1100 Meridian Boulevard, Suite 400 Princeton, New Jersey 08540
Attention: Thomas F. Holbrook, General Counsel & Secretary
Email: tholbrook@penterra.com
with a copy (which shall not constitute notice) to:
Calderwood & Harkness LLP 200 Park Avenue, 42nd Floor New York, New York 10166
Attention: Oliver Mackenzie, Partner
Email: omackenzie@calderwoodharkness.com
If to Veridian:
Veridian Biosciences, Inc. 550 Gateway Drive Cambridge, Massachusetts 02142
Attention: Rachel Stein-Goldberg, General Counsel
Email: rstein-goldberg@veridianbio.com
with a copy (which shall not constitute notice) to:
Zalcourt Archer & Cole LLP One Federal Street, 30th Floor Boston, Massachusetts 02110
Attention: Rebecca Whitmore, Partner
Email: rwhitmore@lathamarcher.com
12.8 Severability. If any term, provision, covenant, or condition of this Agreement is held by a court of competent jurisdiction or other governmental authority to be invalid, illegal, void, or unenforceable, the remainder of the terms, provisions, covenants, and conditions of this Agreement shall remain in full force and effect and shall in no way be affected, impaired, or invalidated thereby, so long as the remaining provisions, taken together, are not inconsistent with, and adequately preserve, the economic substance of the transactions contemplated by this Agreement. Upon such determination that any term or other provision is invalid, illegal, void, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in an acceptable manner to the end that the purposes contemplated hereby are fulfilled to the greatest extent possible. To the extent permitted by applicable law, the invalid or unenforceable provision shall be deemed automatically modified to the minimum extent necessary to make it valid, legal, and enforceable, while preserving the original intent of the Parties.
12.9 Counterparts. This Agreement may be executed in one or more counterparts, each of which when so executed and delivered shall be deemed to be an original, and all of which counterparts, taken together, shall constitute one and the same agreement. Delivery of an executed counterpart of a signature page to this Agreement by electronic mail (including in portable document format (PDF)), facsimile, or other electronic transmission (including any electronic signature complying with the U.S. federal ESIGN Act of 2000, the Uniform Electronic Transactions Act, or any other applicable law) shall be deemed delivery of a manually executed counterpart and shall be effective as delivery of an original executed counterpart of this Agreement.
12.10 No Third-Party Beneficiaries. This Agreement is for the sole benefit of the Parties hereto and their respective Representatives, successors, and permitted assigns, and nothing in this Agreement, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement. Notwithstanding the foregoing, each Party's Representatives shall be deemed third-party beneficiaries of this Agreement solely for purposes of enforcement of the confidentiality obligations by the Disclosing Party, and nothing in this sentence shall be construed to confer upon any Representative any independent right to enforce this Agreement on its own behalf.
12.11 Construction. The headings and captions in this Agreement are included for convenience of reference only and shall not be given any substantive effect and shall not affect the construction or interpretation of this Agreement. All references herein to "Sections" are references to sections of this Agreement unless otherwise specified. The word "including" (and correlative words) means "including without limitation" and shall be construed as illustrative and not restrictive. The words "herein," "hereof," "hereunder," and "hereby" and other words of similar import refer to this Agreement as a whole and not to any particular Section or other subdivision. References to "days" shall mean calendar days unless otherwise specified as "business days." The use of the singular includes the plural and vice versa, and the use of any gender includes each other gender. This Agreement has been negotiated by the Parties with the benefit of legal representation and shall not be construed against either Party as the drafter hereof. Any rule of construction or interpretation to the effect that ambiguities are to be resolved against the drafting Party shall not be applicable to the construction or interpretation of this Agreement.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the Parties have caused this Mutual Confidentiality and Non-Disclosure Agreement to be executed as of the date first written above by their respective duly authorized representatives.
PENTERRA PHARMACEUTICALS CORP.
By: ________
Name: Thomas F. Holbrook
Title: General Counsel & Secretary
Date: March 4, 2024
VERIDIAN BIOSCIENCES, INC.
By: ________
Name: Dr. Julian Marek
Title: Chief Executive Officer
Date: March 4, 2024
Prepared by Calderwood & Harkness LLP on behalf of Penterra Pharmaceuticals Corp.

MUTUAL CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT

PENTERRA PHARMACEUTICALS CORP.

VERIDIAN BIOSCIENCES, INC.

MUTUAL CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT

RECITALS

SECTION 1: DEFINITIONS

SECTION 2: USE AND DISCLOSURE OF CONFIDENTIAL INFORMATION

SECTION 3: EXCLUSIONS FROM CONFIDENTIAL INFORMATION

SECTION 4: COMPELLED DISCLOSURE

SECTION 5: RETURN AND DESTRUCTION OF CONFIDENTIAL INFORMATION

SECTION 6: NON-SOLICITATION OF EMPLOYEES

SECTION 7: STANDSTILL PROVISION

SECTION 9: SECURITIES LAW COMPLIANCE

SECTION 10: REMEDIES

SECTION 11: TERM AND TERMINATION

SECTION 12: MISCELLANEOUS

PENTERRA PHARMACEUTICALS CORP.

VERIDIAN BIOSCIENCES, INC.

Record

Parties

Dates

Amounts