non-competition-agreements-form.docx

1018-00008 · Penterra Pharmaceuticals Corp · Transaction Documents

non-competition-agreements-form.docx DOCUMENT M&A / Corporate

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CONFIDENTIAL — DRAFT FORM — SUBJECT TO REVISION Prepared by Calderwood & Harkness LLP 200 Park Avenue, 42nd Floor New York, NY 10166

June 10, 2024

FORM OF NON-COMPETITION AND NON-SOLICITATION AGREEMENT

Exhibit to Stock Purchase Agreement dated June 10, 2024 among Penterra Pharmaceuticals Corp., Veridian Biosciences, Inc., the Sellers identified therein, and David Ng, as Stockholder Representative

NON-COMPETITION AND NON-SOLICITATION AGREEMENT

This NON-COMPETITION AND NON-SOLICITATION AGREEMENT (this "Agreement") is made and entered into as of [●], 2024 (the "Effective Date"), by and between:

Penterra Pharmaceuticals Corp., a Delaware corporation ("Buyer"), with its principal executive offices at 1400 Innovation Drive, Suite 800, Wilmington, Delaware 19801; and

[Insert name of Key Employee] ("Key Employee"), an individual residing at [Insert address].

Buyer and the Key Employee are sometimes referred to herein individually as a "Party" and collectively as the "Parties."

RECITALS

WHEREAS, Buyer, Veridian Biosciences, Inc., a Delaware corporation (the "Company"), the stockholders of the Company identified therein (collectively, the "Sellers"), and David Ng, as Stockholder Representative (the "Stockholder Representative"), have entered into that certain Stock Purchase Agreement dated as of June 10, 2024 (as it may be amended, restated, supplemented, or otherwise modified from time to time in accordance with its terms, the "Purchase Agreement"), pursuant to which Buyer is acquiring all of the issued and outstanding capital stock of the Company;

WHEREAS, the Key Employee is a [Insert title, e.g., co-founder and officer] of the Company, has been integrally involved in the management, operations, research, and development activities of the Company since its inception, and holds [Insert percentage]% of the fully diluted equity of the Company, and as a result will receive substantial consideration in connection with the consummation of the transactions contemplated by the Purchase Agreement (collectively, the "Transactions");

WHEREAS, by virtue of the Key Employee's positions with the Company, the Key Employee has had access to and possesses Confidential Information (as defined below) and Trade Secrets (as defined below) of the Company and its business, including without limitation proprietary scientific data, clinical trial information, regulatory strategies, business plans, customer and collaborator relationships, and other information that is of significant competitive value to the Company and, following the Closing, to Buyer;

WHEREAS, the Key Employee's agreement to the restrictive covenants contained herein is a material inducement to Buyer's willingness to enter into the Purchase Agreement and consummate the Transactions, and the execution and delivery of this Agreement by the Key Employee is an express condition to the obligation of Buyer to consummate the Closing under the Purchase Agreement;

WHEREAS, the Key Employee acknowledges that the restrictive covenants contained herein are reasonable in scope, duration, and geographic area, and are necessary to protect the legitimate business interests of Buyer and the Company, including the goodwill acquired by Buyer in connection with the Transactions, the value of the Confidential Information and Trade Secrets, and the stability and continuity of the Company's workforce and business relationships; and

WHEREAS, the Key Employee further acknowledges that the consideration to be received by the Key Employee in connection with the Transactions, together with the other consideration described herein, constitutes adequate and sufficient consideration for the Key Employee's agreement to the covenants and obligations set forth in this Agreement.

NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein, the consideration to be received by the Key Employee pursuant to the Purchase Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:

ARTICLE I — DEFINITIONS

Section 1.1 — Definitions. As used in this Agreement, the following terms shall have the meanings set forth below:

"Affiliate" means, with respect to any Person, any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such first Person. For purposes of this definition, "control" (including the terms "controlling," "controlled by," and "under common control with") means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract, or otherwise. Notwithstanding the foregoing, for purposes of this Agreement, the term "Affiliate" shall have the same meaning as ascribed to such term in the Purchase Agreement to the extent such definition is broader than the definition set forth in this Section 1.1.

"Business" means the research, development, manufacturing, marketing, distribution, and commercialization of immuno-oncology therapeutics, including without limitation bispecific T-cell engager therapies targeting delta-like ligand 3 ("DLL3")-expressing tumors (including but not limited to small cell lung cancer, large cell neuroendocrine carcinoma, and other neuroendocrine tumors), and any other line of business conducted by the Company as of the Effective Date or as contemplated to be conducted by the Company within the twelve (12) months prior to the Effective Date, as evidenced by the Company's business plans, board minutes, regulatory filings, clinical trial protocols, or other contemporaneous documentation.

"Closing" has the meaning ascribed to such term in the Purchase Agreement.

"Closing Date" has the meaning ascribed to such term in the Purchase Agreement.

"Company" means Veridian Biosciences, Inc., a Delaware corporation.

"Competing Business" means any Person (other than Buyer and its Affiliates, including, following the Closing, the Company) that is engaged in, or is planning or preparing to engage in, the Business or any material portion thereof, anywhere within the Restricted Territory. For the avoidance of doubt, the term "Competing Business" shall include any division, subsidiary, business unit, or operating segment of a Person that is engaged in, or planning or preparing to engage in, the Business or any material portion thereof, even if such Person is also engaged in other businesses.

"Confidential Information" means all non-public, proprietary, or confidential information and data relating to the Business, the Company, Buyer, or any of their respective Affiliates, regardless of the form or medium in which such information is maintained or communicated, including without limitation: (a) scientific data, research results, experimental protocols, laboratory notebooks, and related materials; (b) clinical trial data, clinical trial designs, investigator brochures, regulatory submissions, and correspondence with regulatory authorities; (c) formulations, compounds, molecules, drug candidates, manufacturing processes, analytical methods, and quality control procedures; (d) patent applications (whether published or unpublished), invention disclosures, and intellectual property strategies; (e) Trade Secrets; (f) customer, collaborator, licensor, licensee, supplier, and vendor lists, and the terms and conditions of agreements with such Persons; (g) financial information, including revenues, costs, margins, projections, budgets, and pricing strategies; (h) business strategies, marketing plans, competitive analyses, and product development roadmaps; (i) employee information, including compensation data, performance evaluations, and organizational charts; and (j) any other information that the Company, Buyer, or any of their respective Affiliates treats as confidential or proprietary. Notwithstanding the foregoing, "Confidential Information" shall not include information that: (i) is or becomes generally available to the public other than as a result of a disclosure by the Key Employee in violation of this Agreement; (ii) was available to the Key Employee on a non-confidential basis prior to the Key Employee's employment or engagement with the Company, provided that the source of such information was not, to the Key Employee's knowledge, bound by a confidentiality obligation with respect thereto; (iii) is independently developed by the Key Employee after the termination of the Key Employee's employment or engagement with the Company and Buyer, without reference to or use of any Confidential Information; or (iv) is received by the Key Employee from a third party that is not, to the Key Employee's knowledge, bound by a confidentiality obligation with respect thereto.

"Person" means any individual, corporation, partnership, limited liability company, joint venture, association, trust, unincorporated organization, governmental authority, or other entity or group (as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended).

"Purchase Agreement" means that certain Stock Purchase Agreement dated as of June 10, 2024, among Buyer, the Company, the Sellers, and the Stockholder Representative, as it may be amended, restated, supplemented, or otherwise modified from time to time in accordance with its terms.

"Restricted Period" means the period commencing on the Closing Date and ending on the second (2nd) anniversary of the Closing Date; provided, however, that the Restricted Period shall be subject to extension as set forth in Section 6.2 of this Agreement.

"Restricted Territory" means (a) the United States of America (including all fifty (50) states, the District of Columbia, and all territories and possessions thereof), and (b) each country in the European Union in which the Company conducted clinical trials, maintained regulatory submissions, had contractual relationships, or otherwise had business operations as of the Effective Date, including without limitation Germany, France, Spain, Italy, the Netherlands, Belgium, Austria, and Ireland.

"Solicit" means to directly or indirectly solicit, entice, recruit, hire, engage, induce, encourage, or otherwise attempt to persuade or influence, whether on the Key Employee's own behalf or on behalf of any other Person. The term "Solicitation" shall have a correlative meaning.

"Trade Secrets" means information, including a formula, pattern, compilation, program, device, method, technique, or process, that: (a) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other Persons who can obtain economic value from its disclosure or use; and (b) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy. The foregoing definition is intended to be consistent with, and shall be interpreted in accordance with, the Delaware Uniform Trade Secrets Act, 6 Del. C. § 2001 et seq.

Section 1.2 — Other Defined Terms. Capitalized terms used but not otherwise defined in this Agreement shall have the respective meanings ascribed to such terms in the Purchase Agreement. Terms defined in the singular shall have a correlative meaning when used in the plural, and vice versa, and words of any gender shall be deemed to include each other gender, in each case as the context requires.

Section 1.3 — Construction. The headings and captions in this Agreement are for convenience of reference only and shall not affect the interpretation of this Agreement. Unless the context otherwise requires, the words "include," "includes," and "including" shall be deemed to be followed by the phrase "without limitation." References to "Articles," "Sections," and "Schedules" refer to the Articles, Sections, and Schedules of this Agreement, unless otherwise indicated.

ARTICLE II — NON-COMPETITION COVENANT

Section 2.1 — Non-Competition. During the Restricted Period, the Key Employee shall not, directly or indirectly, alone or in association with any other Person, whether as a principal, agent, partner, officer, director, stockholder, employee, member, consultant, advisor, independent contractor, licensor, licensee, financier, investor, or in any other capacity whatsoever:

(a) engage in, own, manage, operate, control, finance, or participate in the ownership, management, operation, control, or financing of, any Competing Business within the Restricted Territory;

(b) become employed by, serve as a consultant or advisor to, or render services (whether as an employee, independent contractor, or otherwise) to, any Competing Business within the Restricted Territory in any capacity that involves, relates to, or could reasonably be expected to involve or relate to, the Business; or

(c) acquire or hold any ownership, equity, profit, or similar interest (including any option, warrant, convertible security, or other right to acquire such interest) in any Competing Business within the Restricted Territory;

provided, however, that the restrictions set forth in clause (c) above shall not prohibit the Key Employee from owning, solely as a passive investment, not more than two percent (2%) of the outstanding equity securities of any class of a Person that is listed on a national securities exchange or traded in the over-the-counter market, so long as the Key Employee does not have any active participation in the management, operations, or business of such Person and is not otherwise in violation of this Agreement.

Section 2.2 — Scope and Reasonableness. The Key Employee acknowledges and agrees that:

(a) The duration of the Restricted Period (two (2) years from the Closing Date) is reasonable and appropriate given the nature and scope of the Business, the Key Employee's senior role within the Company, the Key Employee's extensive access to and possession of Confidential Information and Trade Secrets, and the period of time reasonably necessary for Buyer to integrate the Company's business and protect the value of the goodwill acquired in connection with the Transactions;

(b) The geographic scope of the Restricted Territory is reasonable and appropriate given that the Company's business operations, research activities, and clinical trials are conducted at multiple sites across the United States and the European Union, and the competitive market for immuno-oncology therapeutics, including bispecific T-cell engager therapies, is national and international in scope;

(c) The scope of the definition of "Competing Business" is no broader than reasonably necessary to protect the legitimate business interests of Buyer and the Company, including the goodwill, Confidential Information, Trade Secrets, customer and collaborator relationships, and workforce stability acquired or to be preserved in connection with the Transactions;

(d) The consideration received by the Key Employee in connection with the Transactions, including the per-share consideration payable under the Purchase Agreement with respect to the Key Employee's equity holdings in the Company, together with the other benefits and consideration described herein, constitutes full, adequate, and sufficient consideration for the covenants and obligations of the Key Employee contained in this Agreement; and

(e) The restrictions set forth in this Article II will not prevent the Key Employee from earning a livelihood following the Closing, given the Key Employee's education, skills, abilities, and experience.

ARTICLE III — NON-SOLICITATION COVENANTS

Section 3.1 — Non-Solicitation of Employees. During the Restricted Period, the Key Employee shall not, directly or indirectly, whether on the Key Employee's own behalf or on behalf of any other Person:

(a) Solicit, recruit, hire, or attempt to Solicit, recruit, or hire any Person who is, or was at any time within the six (6) months immediately prior to the date of such Solicitation, an employee, officer, or independent contractor of the Company, Buyer, or any of their respective Affiliates; or

(b) induce, encourage, or attempt to induce or encourage any Person who is an employee, officer, or independent contractor of the Company, Buyer, or any of their respective Affiliates to terminate, diminish, or otherwise adversely modify his or her employment, engagement, or other relationship with the Company, Buyer, or any of their respective Affiliates.

Notwithstanding the foregoing, the restrictions set forth in this Section 3.1 shall not prohibit (i) general solicitations of employment through advertisements, job postings, or similar means of general circulation (including Internet job boards, social media platforms, and similar public forums) that are not specifically targeted at, or directed to, employees or independent contractors of the Company, Buyer, or any of their respective Affiliates, or (ii) the hiring of any Person who responds to any such general solicitation, so long as neither the Key Employee nor any Person acting at the Key Employee's direction or on the Key Employee's behalf specifically encouraged or induced such Person to respond to such general solicitation. For the avoidance of doubt, the use of a search firm, recruiting agency, or similar intermediary to target or approach employees or independent contractors of the Company, Buyer, or their respective Affiliates shall constitute a violation of this Section 3.1.

Section 3.2 — Non-Solicitation of Business Relationships. During the Restricted Period, the Key Employee shall not, directly or indirectly, whether on the Key Employee's own behalf or on behalf of any other Person:

(a) Solicit, divert, or take away, or attempt to Solicit, divert, or take away, any customer, client, collaborator, licensor, licensee, clinical trial site, principal investigator, sub-investigator, vendor, supplier, contract research organization, contract manufacturing organization, or other business relationship of the Company, Buyer, or any of their respective Affiliates, for the purpose of providing or receiving products, services, or technology competitive with the Business, or for the purpose of otherwise interfering with or diverting any aspect of the Business; or

(b) induce, encourage, or attempt to induce or encourage any such Person to terminate, reduce, curtail, or otherwise adversely modify its business, contractual, or commercial relationship with the Company, Buyer, or any of their respective Affiliates.

Section 3.3 — Non-Interference. During the Restricted Period, the Key Employee shall not, directly or indirectly, interfere with or disrupt, or attempt to interfere with or disrupt, the business, operations, contractual relationships, or business relationships of the Company, Buyer, or any of their respective Affiliates. Without limiting the generality of the foregoing, the Key Employee shall not make any disparaging or derogatory statements, whether written or oral, regarding the Company, Buyer, or any of their respective Affiliates, or any of their respective officers, directors, employees, products, services, or business practices, to any Person, including without limitation any employee, customer, collaborator, licensor, licensee, vendor, supplier, investor, analyst, or member of the media; provided, however, that the foregoing restriction shall not prohibit the Key Employee from making truthful statements (i) when required by applicable law, regulation, or legal process, or (ii) in connection with any legal proceeding in which the Key Employee is a party or witness.

ARTICLE IV — CONFIDENTIALITY

Section 4.1 — Confidentiality Obligations. The Key Employee acknowledges that, during the course of the Key Employee's employment and other engagement with the Company, the Key Employee has had access to and has obtained Confidential Information and Trade Secrets that are of significant competitive value to the Company and, following the Closing, to Buyer. The Key Employee shall not, at any time during or after the Restricted Period, directly or indirectly, disclose, reveal, publish, furnish, make accessible, or use for the Key Employee's own benefit or for the benefit of any third party, any Confidential Information or Trade Secrets, except:

(a) as required in the good-faith performance of the Key Employee's duties to Buyer or the Company following the Closing, and then only to Persons who have a need to know such information and who are bound by obligations of confidentiality no less restrictive than those contained herein;

(b) as required by applicable law, regulation, subpoena, civil investigative demand, court order, or other compulsory legal process; provided, however, that in the event the Key Employee is requested or required by any such process to disclose any Confidential Information or Trade Secrets, the Key Employee shall (to the extent legally permissible) provide Buyer with prompt written notice of such request or requirement so that Buyer may, at its sole expense, seek an appropriate protective order, confidentiality agreement, or other appropriate remedy, and the Key Employee shall reasonably cooperate with Buyer in connection with any such efforts; provided, further, that if such protective order or other remedy is not obtained, or if Buyer waives compliance with the provisions of this Section 4.1(b), the Key Employee shall disclose only that portion of the Confidential Information or Trade Secrets that the Key Employee is advised by counsel is legally required to be disclosed; or

The obligations of the Key Employee under this Section 4.1 with respect to Confidential Information shall continue for a period of five (5) years following the termination of the Key Employee's employment with the Company or Buyer (or such longer period as may be required by applicable law), and the obligations of the Key Employee under this Section 4.1 with respect to Trade Secrets shall continue for so long as the applicable information constitutes a Trade Secret under applicable law.

Section 4.2 — Return of Materials. Upon the Closing Date, or, if later, upon the termination of the Key Employee's employment or other engagement with the Company or Buyer for any reason, the Key Employee shall promptly:

(a) return to Buyer (or, if directed by Buyer, destroy) all originals and copies of documents, materials, files, records, correspondence, notebooks, reports, presentations, data compilations, electronic media, computer files, and other tangible or electronic items in the Key Employee's possession, custody, or control that contain, reflect, or are derived from Confidential Information or Trade Secrets, or that are otherwise the property of the Company or Buyer; and

(b) permanently delete all electronic copies of Confidential Information or Trade Secrets stored on any personal computers, mobile devices, cloud storage accounts, external drives, email accounts, or other electronic storage media owned, leased, or controlled by the Key Employee.

The Key Employee shall, upon Buyer's request, certify in writing that the Key Employee has complied with the requirements of this Section 4.2. Notwithstanding the foregoing, the Key Employee may retain (i) personal copies of the Key Employee's own compensation and benefit records, and (ii) documents or materials to the extent retention is required by applicable law or regulation, provided that such documents and materials shall remain subject to the confidentiality obligations set forth in this Article IV.

Section 4.3 — Defend Trade Secrets Act Notice. Pursuant to the Defend Trade Secrets Act of 2016 (18 U.S.C. § 1833(b)), the Key Employee is hereby notified as follows:

(a) An individual shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that (i) is made in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney, and solely for the purpose of reporting or investigating a suspected violation of law; or (ii) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.

(b) An individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual (i) files any document containing the trade secret under seal, and (ii) does not disclose the trade secret, except pursuant to court order.

Nothing in this Agreement is intended to conflict with, or shall be construed to limit, any rights of the Key Employee under the Defend Trade Secrets Act of 2016, the National Labor Relations Act, or any other applicable federal, state, or local law, including the right to make reports or disclosures to any governmental authority without prior authorization from or notification to Buyer.

ARTICLE V — INTELLECTUAL PROPERTY ASSIGNMENT

Section 5.1 — Assignment of Inventions. The Key Employee agrees and acknowledges that all inventions, discoveries, developments, improvements, innovations, ideas, concepts, works of authorship, designs, processes, methods, techniques, algorithms, software, data, databases, formulations, compounds, compositions of matter, biological materials, and all related intellectual property rights (including all patent rights, copyrights, trademark rights, trade secret rights, and all other intellectual property and proprietary rights, whether or not registrable) (collectively, "Inventions") that were conceived, created, developed, or reduced to practice by the Key Employee, whether alone or jointly with others, during the term of the Key Employee's employment or engagement with the Company (whether before or after the Closing), and that (a) relate to the Business, or (b) were created using the resources, facilities, equipment, or Confidential Information of the Company or Buyer, or (c) were created within the scope of the Key Employee's duties or responsibilities with the Company, are and shall be the sole and exclusive property of the Company (or, following the Closing, Buyer and its successors and assigns).

To the extent that any such Inventions are not already owned by the Company or Buyer by operation of law, the Key Employee hereby irrevocably assigns, transfers, and conveys to Buyer all of the Key Employee's right, title, and interest in and to such Inventions, including all intellectual property rights therein and thereto, effective as of the date of creation or conception of each such Invention, and agrees to execute and deliver such additional documents, instruments, and assignments as Buyer may reasonably request to evidence, perfect, or record such assignment. The Key Employee further agrees to waive and hereby waives any and all moral rights (including rights of attribution and integrity) that the Key Employee may have with respect to any such Inventions, to the fullest extent permitted by applicable law.

For the avoidance of doubt, the obligations set forth in this Section 5.1 are in addition to, and not in limitation of, any obligations of the Key Employee under any existing Inventions Assignment Agreement, Proprietary Information and Inventions Agreement, or similar agreement between the Key Employee and the Company, including without limitation any Inventions Assignment Agreement previously executed by the Key Employee in connection with the founding of the Company or the commencement of the Key Employee's employment therewith. In the event of any conflict between the terms of this Section 5.1 and the terms of any such prior agreement, the provisions that are more protective of Buyer's interests shall control.

Section 5.2 — Cooperation. The Key Employee shall, during and after the Restricted Period, reasonably cooperate with Buyer, at Buyer's sole cost and expense (including reimbursement of the Key Employee's reasonable out-of-pocket expenses), in connection with the preparation, prosecution, maintenance, enforcement, or defense of any patents, patent applications, trademarks, trademark applications, copyrights, copyright registrations, trade secrets, or other intellectual property rights related to the Business or any Inventions, including without limitation:

(a) providing truthful testimony and executing declarations, affidavits, assignments, powers of attorney, and other documents and instruments as may be reasonably necessary or desirable in connection with any patent prosecution, patent interference, inter partes review, post-grant review, opposition, reexamination, litigation, or other intellectual property proceeding;

(b) assisting in the preparation and filing of any patent application, continuation, divisional, continuation-in-part, or foreign counterpart application relating to any Invention; and

(c) providing technical information, explanations, and other assistance as may be reasonably requested by Buyer's patent counsel or intellectual property advisors.

The Key Employee acknowledges that Buyer's ability to protect and enforce the intellectual property rights acquired in connection with the Transactions is critical to the value of the Company's business, and the Key Employee agrees to make himself or herself reasonably available for such cooperation. Buyer shall use reasonable efforts to schedule any requests for cooperation at times that do not unreasonably interfere with the Key Employee's other professional obligations.

ARTICLE VI — REMEDIES

Section 6.1 — Equitable Relief. The Key Employee acknowledges and agrees that:

(a) A breach or threatened breach of any of the covenants or obligations of the Key Employee contained in this Agreement (including, without limitation, the covenants set forth in Articles II, III, IV, and V) would cause irreparable harm to Buyer and the Company, the nature and extent of which would be difficult or impossible to ascertain, and for which monetary damages alone would not constitute an adequate remedy;

(b) In the event of any such breach or threatened breach, Buyer shall be entitled to seek and obtain, in addition to any other remedies available at law or in equity (including monetary damages), temporary, preliminary, and permanent injunctive relief and orders of specific performance to enforce the provisions of this Agreement and to prevent or restrain any such breach or threatened breach, in each case without the necessity of (i) proving actual damages, (ii) posting a bond or other security, or (iii) establishing the inadequacy of monetary damages as a remedy (each of which requirements the Key Employee hereby waives to the fullest extent permitted by applicable law); and

(c) The rights and remedies of Buyer under this Agreement are cumulative and are in addition to, and not in substitution for, any other rights or remedies available to Buyer at law, in equity, or otherwise, including without limitation any rights or remedies under the Purchase Agreement.

Section 6.2 — Extension of Restricted Period. If the Key Employee violates any provision of Article II or Article III of this Agreement, the Restricted Period applicable to the covenant so violated shall be automatically extended by a period of time equal to the duration of such violation, commencing on the date on which such violation ceases, such that Buyer receives the full benefit of the agreed-upon duration of the Restricted Period. The extension provided for in this Section 6.2 shall be in addition to, and not in limitation of, any other remedies available to Buyer under this Agreement or otherwise.

Section 6.3 — Indemnification. The Key Employee shall indemnify, defend, and hold harmless Buyer and its Affiliates (including, following the Closing, the Company), and their respective officers, directors, employees, agents, successors, and assigns (collectively, the "Buyer Indemnified Parties"), from and against any and all losses, damages, liabilities, deficiencies, claims, actions, suits, proceedings, judgments, awards, fines, penalties, costs, and expenses (including reasonable attorneys' fees and disbursements, costs of investigation, and costs of enforcement of indemnification rights) (collectively, "Losses") arising out of, resulting from, or in connection with any breach or violation by the Key Employee of any covenant, obligation, representation, or warranty contained in this Agreement.

The indemnification obligations set forth in this Section 6.3 are in addition to, and not in lieu of, any indemnification obligations of the Sellers (including the Key Employee in such capacity) under Article IX of the Purchase Agreement or under any other agreement between the Key Employee and Buyer, and shall not be subject to any limitations on indemnification set forth in the Purchase Agreement unless expressly stated therein. The indemnification obligations of the Key Employee under this Section 6.3 shall survive the expiration or termination of the Restricted Period and shall continue until the expiration of the applicable statute of limitations period.

ARTICLE VII — REPRESENTATIONS AND ACKNOWLEDGMENTS

Section 7.1 — Key Employee's Representations. The Key Employee hereby represents and warrants to Buyer as follows:

(a) The Key Employee has the legal capacity and right to execute, deliver, and perform this Agreement. This Agreement has been duly executed and delivered by the Key Employee and constitutes the legal, valid, and binding obligation of the Key Employee, enforceable against the Key Employee in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, and other similar laws affecting the enforcement of creditors' rights generally and to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity);

(b) The execution, delivery, and performance of this Agreement by the Key Employee will not conflict with, result in a breach or violation of, or constitute a default (or an event that, with or without notice or the lapse of time or both, would constitute a default) under, any agreement, obligation, commitment, order, judgment, decree, law, rule, or regulation to which the Key Employee is a party or by which the Key Employee or any of the Key Employee's properties or assets is bound;

(c) The Key Employee has had a full and adequate opportunity to consult with independent legal counsel of the Key Employee's own choosing regarding the terms, conditions, and legal effects of this Agreement, and the Key Employee has either consulted with such counsel or has voluntarily elected not to do so;

(d) The Key Employee has carefully read this Agreement in its entirety, fully understands each of the provisions hereof, and is entering into this Agreement voluntarily and of the Key Employee's own free will, with full knowledge of the terms and consequences hereof;

(e) The restrictions on the Key Employee's activities contained in Articles II, III, IV, and V of this Agreement are reasonable in scope, duration, and geographic area, and are necessary and appropriate to protect Buyer's legitimate business interests, including the goodwill, Confidential Information, Trade Secrets, customer and business relationships, and workforce stability acquired or to be preserved in connection with the Transactions; and

(f) Schedule A to this Agreement sets forth a true, correct, and complete list of all existing non-competition, non-solicitation, confidentiality, or similar restrictive covenant agreements to which the Key Employee is a party as of the Effective Date.

Section 7.2 — Adequate Consideration. The Key Employee acknowledges and agrees that the consideration received by the Key Employee in connection with the Transactions, including without limitation the per-share consideration payable under the Purchase Agreement with respect to the Key Employee's equity holdings in the Company (as set forth on Schedule A hereto), the continued employment opportunities with the Company and Buyer following the Closing, and the other benefits and consideration provided to the Key Employee, constitutes full, adequate, and sufficient consideration for the covenants, restrictions, and obligations of the Key Employee contained in this Agreement. The Key Employee further acknowledges that the Key Employee would not have received such consideration but for the Key Employee's agreement to be bound by the terms and conditions of this Agreement.

ARTICLE VIII — GENERAL PROVISIONS

Section 8.1 — Governing Law. This Agreement and any claim, controversy, or dispute arising out of or relating to this Agreement, or the negotiation, execution, validity, interpretation, performance, breach, or termination hereof, shall be governed by, and construed and enforced in accordance with, the internal laws of the State of Delaware, without giving effect to any choice-of-law or conflict-of-laws rules or principles that would cause the application of the laws of any jurisdiction other than the State of Delaware.

Section 8.2 — 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, any federal court of the United States of America sitting in the State of Delaware, and if no such federal court accepts jurisdiction, any state court of the State of Delaware) for the purposes of any action, suit, or proceeding arising out of or relating to this Agreement, and each Party agrees not to commence any such action, suit, or proceeding except in such courts. Each Party hereby irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, (a) any objection that it may now or hereafter have to the laying of venue of any such action, suit, or proceeding in any such court, and (b) the defense of an inconvenient forum to the maintenance of any such action, suit, or proceeding in any such court. Each Party further agrees that service of process, summons, notice, or document by registered mail, return receipt requested, to such Party's address set forth in Section 8.8 of this Agreement (or as otherwise updated in accordance therewith) shall be effective service of process for any such action, suit, or proceeding brought in any such court.

Section 8.3 — Waiver of Jury Trial. EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND 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 TRANSACTIONS CONTEMPLATED HEREBY, OR THE ACTIONS OF EITHER PARTY IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE, OR ENFORCEMENT HEREOF. EACH PARTY (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT, OR ATTORNEY OF THE OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF ANY SUCH ACTION, SUIT, OR PROCEEDING, SEEK TO ENFORCE THE FOREGOING WAIVER, AND (B) ACKNOWLEDGES THAT IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS SET FORTH IN THIS SECTION 8.3.

Section 8.4 — Severability and Judicial Modification. If any provision of this Agreement (or any portion thereof) is held to be invalid, illegal, or unenforceable by a court of competent jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other provision of this Agreement (or the remaining portion of the affected provision), and all other provisions of this Agreement (and the remaining portions of affected provisions) shall remain in full force and effect. In the event that any court of competent jurisdiction shall determine that the duration, scope, area, or any other aspect of any restrictive covenant contained in this Agreement is unreasonable, overly broad, or otherwise unenforceable, it is the intention and agreement of the Parties that such court shall exercise its discretion to reduce, modify, reform, or limit such provision to the minimum extent necessary to render it valid and enforceable, and shall enforce such provision as so reduced, modified, reformed, or limited. The Parties acknowledge and agree that this Section 8.4 is intended to constitute a "blue pencil" and judicial modification provision, and that the Parties would have entered into this Agreement with any such reduced, modified, reformed, or limited provision in lieu of the original provision as drafted. Each Party further acknowledges that such Party has been advised by legal counsel with respect to this provision.

Section 8.5 — Entire Agreement. This Agreement, together with the Purchase Agreement, any exhibits and schedules hereto and thereto, and any other agreements or instruments expressly referenced herein or therein, constitutes the entire agreement and understanding between the Parties with respect to the subject matter hereof and supersedes all prior and contemporaneous negotiations, representations, warranties, commitments, offers, contracts, agreements, and understandings (whether written or oral) between the Parties with respect to such subject matter. Notwithstanding the foregoing, nothing in this Agreement shall be deemed to supersede or terminate any obligations of the Key Employee under any existing Inventions Assignment Agreement or Proprietary Information and Inventions Agreement between the Key Employee and the Company, to the extent such obligations are not inconsistent with the terms of this Agreement.

Section 8.6 — Amendment and Waiver. This Agreement may not be amended, modified, supplemented, or restated except by a written instrument duly executed by both Parties. No waiver by either Party of any breach or default of any term, condition, or provision of this Agreement shall be deemed a waiver of any other or subsequent breach or default, whether of a similar or different nature. 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. Any waiver must be in writing and signed by the Party granting such waiver to be effective.

Section 8.7 — Assignment. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective heirs, executors, administrators, personal representatives, successors, and permitted assigns. The Key Employee may not assign, delegate, or otherwise transfer this Agreement or any of the Key Employee's rights or obligations hereunder, in whole or in part, without the prior written consent of Buyer, and any attempted assignment, delegation, or transfer without such consent shall be null and void and of no force or effect. Buyer may, without the consent of the Key Employee, assign any or all of its rights and obligations under this Agreement to (a) any Affiliate of Buyer, (b) any successor in interest (whether by merger, consolidation, acquisition, or otherwise) to all or substantially all of the business or assets of Buyer or the Company, or (c) any purchaser of all or substantially all of the equity interests or assets of the Company; provided, however, that no such assignment shall relieve Buyer of its obligations under this Agreement unless the assignee expressly assumes such obligations in writing.

Section 8.8 — Notices. All notices, demands, requests, consents, approvals, and other communications required or permitted under this Agreement shall be in writing and shall be deemed to have been duly given and received (a) upon delivery, if delivered personally (including by nationally recognized overnight courier service) to the Party to be notified, (b) upon sending, if sent by electronic mail during normal business hours of the recipient (and if not sent during normal business hours, then on the next Business Day), or (c) five (5) Business Days after deposit in the United States mail, certified or registered, return receipt requested, postage prepaid, in each case addressed to the Party to be notified at the following addresses (or at such other address as such Party may designate by written notice to the other Party in accordance with this Section 8.8):

If to Buyer:

Penterra Pharmaceuticals Corp. 1400 Innovation Drive, Suite 800 Wilmington, Delaware 19801

Attention: General Counsel

Email: [Insert email]

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

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

Attention: [Insert attorney name]

Email: [Insert email]

If to the Key Employee:

[Insert name of Key Employee] [Insert address of Key Employee]

Email: [Insert email]

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

[Insert name and address of Key Employee's counsel, if applicable]

Email: [Insert email]

All notices delivered in accordance with the notice provisions of the Purchase Agreement shall be deemed to have been delivered in compliance with this Section 8.8 to the extent consistent herewith.

Section 8.9 — Counterparts. This Agreement may be executed in any number of counterparts (including by means of facsimile or portable document format (.pdf) signature pages), each of which when so executed and delivered shall be deemed an original, and all of which taken together shall constitute one and the same instrument. Delivery of an executed counterpart of a signature page of this Agreement by facsimile transmission, by electronic mail in portable document format (.pdf), or by any other electronic means intended to preserve the original graphic and pictorial appearance of a document, shall be as effective as delivery of a manually executed counterpart of this Agreement.

Section 8.10 — Third-Party Beneficiaries. The Company and its Affiliates (including, following the Closing, the subsidiaries and Affiliates of Buyer) are intended third-party beneficiaries of this Agreement and shall have the right, without the consent of any other Person, to enforce any and all provisions of this Agreement as if they were parties hereto. Except as expressly set forth in the preceding sentence, this Agreement is not intended to and shall not be construed to give any Person other than the Parties any legal or equitable right, remedy, or claim under or with respect to this Agreement.

Section 8.11 — Survival. The covenants, agreements, representations, and warranties of the Key Employee contained in this Agreement shall survive the Closing and the consummation of the Transactions, and shall not be affected by any investigation or examination conducted by or on behalf of Buyer, whether before or after the Closing, or by any information that Buyer may have or obtain with respect thereto. Without limiting the generality of the foregoing, the provisions of Article IV (Confidentiality), Article V (Intellectual Property Assignment), Article VI (Remedies), and Article VIII (General Provisions) shall survive the expiration or termination of the Restricted Period and the termination of the Key Employee's employment or engagement with the Company or Buyer.

Section 8.12 — Relationship to Purchase Agreement. This Agreement is being executed and delivered pursuant to, and as contemplated by, the Purchase Agreement. The Parties acknowledge and agree that this Agreement is one of the ancillary agreements contemplated by the Purchase Agreement, and the execution and delivery of this Agreement by the Key Employee is an express condition to Buyer's obligations to consummate the Closing under the Purchase Agreement. In the event of any irreconcilable conflict between the terms and provisions of this Agreement and the terms and provisions of the Purchase Agreement, the terms and provisions of the Purchase Agreement shall control and prevail, and this Agreement shall be interpreted and construed so as to give effect to the terms and provisions of the Purchase Agreement to the fullest extent possible. Nothing in this Agreement shall limit, modify, reduce, or otherwise affect any rights, remedies, or obligations of any party under the Purchase Agreement, including without limitation the indemnification provisions set forth in Article IX thereof, and the rights and obligations of the Parties under this Agreement shall be in addition to, and not in limitation or substitution of, any rights or obligations arising under the Purchase Agreement.

[Remainder of this page intentionally left blank. Signature page follows.]

SIGNATURE PAGE TO NON-COMPETITION AND NON-SOLICITATION AGREEMENT

IN WITNESS WHEREOF, the Parties have duly executed this Non-Competition and Non-Solicitation Agreement as of the date first written above.

BUYER:

PENTERRA PHARMACEUTICALS CORP.

By: ________

Name: [Insert name]

Title: [Insert title]

Date: ________

KEY EMPLOYEE:

________________________________________

Name: [Insert name of Key Employee]

Address: [Insert address]

Date: ________

SCHEDULE A

KEY EMPLOYEE INFORMATION

Instructional Note: This Schedule A is to be completed separately for each Key Employee at the time of execution. One fully executed original of this Agreement, together with a completed Schedule A, shall be prepared for each Key Employee identified below. The Key Employees for whom this form is intended include Dr. Julian Marek (CEO & Co-Founder) and Dr. Priya Chandrasekaran (CSO & Co-Founder) of Veridian Biosciences, Inc.

Name of Key Employee: [Insert]

Title / Position with the Company: [Insert, e.g., Chief Executive Officer & Co-Founder; Chief Scientific Officer & Co-Founder]

Equity Ownership in the Company (fully diluted basis): [Insert percentage, e.g., 8.4%; 6.2%]

Home Address:

[Insert street address] [Insert city, state, zip code]

Email Address: [Insert]

Telephone Number: [Insert]

Description of any existing non-competition, non-solicitation, confidentiality, or similar restrictive covenant agreements to which the Key Employee is a party (other than this Agreement):

[Insert description of each such agreement, including the names of the parties thereto, the date of execution, and a summary of the material restrictive covenants contained therein; or state "None" if no such agreements exist]

Acknowledged and confirmed by the Key Employee:

________________________________________

Name: [Insert name of Key Employee]

Date: ________

CONFIDENTIAL — DRAFT FORM — SUBJECT TO REVISION Prepared by Calderwood & Harkness LLP 200 Park Avenue, 42nd Floor New York, NY 10166
June 10, 2024
FORM OF NON-COMPETITION AND NON-SOLICITATION AGREEMENT
Exhibit to Stock Purchase Agreement dated June 10, 2024 among Penterra Pharmaceuticals Corp., Veridian Biosciences, Inc., the Sellers identified therein, and David Ng, as Stockholder Representative
NON-COMPETITION AND NON-SOLICITATION AGREEMENT
This NON-COMPETITION AND NON-SOLICITATION AGREEMENT (this "Agreement") is made and entered into as of [●], 2024 (the "Effective Date"), by and between:
Penterra Pharmaceuticals Corp., a Delaware corporation ("Buyer"), with its principal executive offices at 1400 Innovation Drive, Suite 800, Wilmington, Delaware 19801; and
[Insert name of Key Employee] ("Key Employee"), an individual residing at [Insert address].
Buyer and the Key Employee are sometimes referred to herein individually as a "Party" and collectively as the "Parties."
RECITALS
WHEREAS, Buyer, Veridian Biosciences, Inc., a Delaware corporation (the "Company"), the stockholders of the Company identified therein (collectively, the "Sellers"), and David Ng, as Stockholder Representative (the "Stockholder Representative"), have entered into that certain Stock Purchase Agreement dated as of June 10, 2024 (as it may be amended, restated, supplemented, or otherwise modified from time to time in accordance with its terms, the "Purchase Agreement"), pursuant to which Buyer is acquiring all of the issued and outstanding capital stock of the Company;
WHEREAS, the Key Employee is a [Insert title, e.g., co-founder and officer] of the Company, has been integrally involved in the management, operations, research, and development activities of the Company since its inception, and holds [Insert percentage]% of the fully diluted equity of the Company, and as a result will receive substantial consideration in connection with the consummation of the transactions contemplated by the Purchase Agreement (collectively, the "Transactions");
WHEREAS, by virtue of the Key Employee's positions with the Company, the Key Employee has had access to and possesses Confidential Information (as defined below) and Trade Secrets (as defined below) of the Company and its business, including without limitation proprietary scientific data, clinical trial information, regulatory strategies, business plans, customer and collaborator relationships, and other information that is of significant competitive value to the Company and, following the Closing, to Buyer;
WHEREAS, the Key Employee's agreement to the restrictive covenants contained herein is a material inducement to Buyer's willingness to enter into the Purchase Agreement and consummate the Transactions, and the execution and delivery of this Agreement by the Key Employee is an express condition to the obligation of Buyer to consummate the Closing under the Purchase Agreement;
WHEREAS, the Key Employee acknowledges that the restrictive covenants contained herein are reasonable in scope, duration, and geographic area, and are necessary to protect the legitimate business interests of Buyer and the Company, including the goodwill acquired by Buyer in connection with the Transactions, the value of the Confidential Information and Trade Secrets, and the stability and continuity of the Company's workforce and business relationships; and
WHEREAS, the Key Employee further acknowledges that the consideration to be received by the Key Employee in connection with the Transactions, together with the other consideration described herein, constitutes adequate and sufficient consideration for the Key Employee's agreement to the covenants and obligations set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein, the consideration to be received by the Key Employee pursuant to the Purchase Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:
ARTICLE I — DEFINITIONS
Section 1.1 — Definitions. As used in this Agreement, the following terms shall have the meanings set forth below:
"Affiliate" means, with respect to any Person, any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such first Person. For purposes of this definition, "control" (including the terms "controlling," "controlled by," and "under common control with") means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract, or otherwise. Notwithstanding the foregoing, for purposes of this Agreement, the term "Affiliate" shall have the same meaning as ascribed to such term in the Purchase Agreement to the extent such definition is broader than the definition set forth in this Section 1.1.
"Business" means the research, development, manufacturing, marketing, distribution, and commercialization of immuno-oncology therapeutics, including without limitation bispecific T-cell engager therapies targeting delta-like ligand 3 ("DLL3")-expressing tumors (including but not limited to small cell lung cancer, large cell neuroendocrine carcinoma, and other neuroendocrine tumors), and any other line of business conducted by the Company as of the Effective Date or as contemplated to be conducted by the Company within the twelve (12) months prior to the Effective Date, as evidenced by the Company's business plans, board minutes, regulatory filings, clinical trial protocols, or other contemporaneous documentation.
"Closing" has the meaning ascribed to such term in the Purchase Agreement.
"Closing Date" has the meaning ascribed to such term in the Purchase Agreement.
"Company" means Veridian Biosciences, Inc., a Delaware corporation.
"Competing Business" means any Person (other than Buyer and its Affiliates, including, following the Closing, the Company) that is engaged in, or is planning or preparing to engage in, the Business or any material portion thereof, anywhere within the Restricted Territory. For the avoidance of doubt, the term "Competing Business" shall include any division, subsidiary, business unit, or operating segment of a Person that is engaged in, or planning or preparing to engage in, the Business or any material portion thereof, even if such Person is also engaged in other businesses.
"Confidential Information" means all non-public, proprietary, or confidential information and data relating to the Business, the Company, Buyer, or any of their respective Affiliates, regardless of the form or medium in which such information is maintained or communicated, including without limitation: (a) scientific data, research results, experimental protocols, laboratory notebooks, and related materials; (b) clinical trial data, clinical trial designs, investigator brochures, regulatory submissions, and correspondence with regulatory authorities; (c) formulations, compounds, molecules, drug candidates, manufacturing processes, analytical methods, and quality control procedures; (d) patent applications (whether published or unpublished), invention disclosures, and intellectual property strategies; (e) Trade Secrets; (f) customer, collaborator, licensor, licensee, supplier, and vendor lists, and the terms and conditions of agreements with such Persons; (g) financial information, including revenues, costs, margins, projections, budgets, and pricing strategies; (h) business strategies, marketing plans, competitive analyses, and product development roadmaps; (i) employee information, including compensation data, performance evaluations, and organizational charts; and (j) any other information that the Company, Buyer, or any of their respective Affiliates treats as confidential or proprietary. Notwithstanding the foregoing, "Confidential Information" shall not include information that: (i) is or becomes generally available to the public other than as a result of a disclosure by the Key Employee in violation of this Agreement; (ii) was available to the Key Employee on a non-confidential basis prior to the Key Employee's employment or engagement with the Company, provided that the source of such information was not, to the Key Employee's knowledge, bound by a confidentiality obligation with respect thereto; (iii) is independently developed by the Key Employee after the termination of the Key Employee's employment or engagement with the Company and Buyer, without reference to or use of any Confidential Information; or (iv) is received by the Key Employee from a third party that is not, to the Key Employee's knowledge, bound by a confidentiality obligation with respect thereto.
"Person" means any individual, corporation, partnership, limited liability company, joint venture, association, trust, unincorporated organization, governmental authority, or other entity or group (as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended).
"Purchase Agreement" means that certain Stock Purchase Agreement dated as of June 10, 2024, among Buyer, the Company, the Sellers, and the Stockholder Representative, as it may be amended, restated, supplemented, or otherwise modified from time to time in accordance with its terms.
"Restricted Period" means the period commencing on the Closing Date and ending on the second (2nd) anniversary of the Closing Date; provided, however, that the Restricted Period shall be subject to extension as set forth in Section 6.2 of this Agreement.
"Restricted Territory" means (a) the United States of America (including all fifty (50) states, the District of Columbia, and all territories and possessions thereof), and (b) each country in the European Union in which the Company conducted clinical trials, maintained regulatory submissions, had contractual relationships, or otherwise had business operations as of the Effective Date, including without limitation Germany, France, Spain, Italy, the Netherlands, Belgium, Austria, and Ireland.
"Solicit" means to directly or indirectly solicit, entice, recruit, hire, engage, induce, encourage, or otherwise attempt to persuade or influence, whether on the Key Employee's own behalf or on behalf of any other Person. The term "Solicitation" shall have a correlative meaning.
"Trade Secrets" means information, including a formula, pattern, compilation, program, device, method, technique, or process, that: (a) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other Persons who can obtain economic value from its disclosure or use; and (b) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy. The foregoing definition is intended to be consistent with, and shall be interpreted in accordance with, the Delaware Uniform Trade Secrets Act, 6 Del. C. § 2001 et seq.
Section 1.2 — Other Defined Terms. Capitalized terms used but not otherwise defined in this Agreement shall have the respective meanings ascribed to such terms in the Purchase Agreement. Terms defined in the singular shall have a correlative meaning when used in the plural, and vice versa, and words of any gender shall be deemed to include each other gender, in each case as the context requires.
Section 1.3 — Construction. The headings and captions in this Agreement are for convenience of reference only and shall not affect the interpretation of this Agreement. Unless the context otherwise requires, the words "include," "includes," and "including" shall be deemed to be followed by the phrase "without limitation." References to "Articles," "Sections," and "Schedules" refer to the Articles, Sections, and Schedules of this Agreement, unless otherwise indicated.
ARTICLE II — NON-COMPETITION COVENANT
Section 2.1 — Non-Competition. During the Restricted Period, the Key Employee shall not, directly or indirectly, alone or in association with any other Person, whether as a principal, agent, partner, officer, director, stockholder, employee, member, consultant, advisor, independent contractor, licensor, licensee, financier, investor, or in any other capacity whatsoever:
(a) engage in, own, manage, operate, control, finance, or participate in the ownership, management, operation, control, or financing of, any Competing Business within the Restricted Territory;
(b) become employed by, serve as a consultant or advisor to, or render services (whether as an employee, independent contractor, or otherwise) to, any Competing Business within the Restricted Territory in any capacity that involves, relates to, or could reasonably be expected to involve or relate to, the Business; or
(c) acquire or hold any ownership, equity, profit, or similar interest (including any option, warrant, convertible security, or other right to acquire such interest) in any Competing Business within the Restricted Territory;
provided, however, that the restrictions set forth in clause (c) above shall not prohibit the Key Employee from owning, solely as a passive investment, not more than two percent (2%) of the outstanding equity securities of any class of a Person that is listed on a national securities exchange or traded in the over-the-counter market, so long as the Key Employee does not have any active participation in the management, operations, or business of such Person and is not otherwise in violation of this Agreement.
Section 2.2 — Scope and Reasonableness. The Key Employee acknowledges and agrees that:
(a) The duration of the Restricted Period (two (2) years from the Closing Date) is reasonable and appropriate given the nature and scope of the Business, the Key Employee's senior role within the Company, the Key Employee's extensive access to and possession of Confidential Information and Trade Secrets, and the period of time reasonably necessary for Buyer to integrate the Company's business and protect the value of the goodwill acquired in connection with the Transactions;
(b) The geographic scope of the Restricted Territory is reasonable and appropriate given that the Company's business operations, research activities, and clinical trials are conducted at multiple sites across the United States and the European Union, and the competitive market for immuno-oncology therapeutics, including bispecific T-cell engager therapies, is national and international in scope;
(c) The scope of the definition of "Competing Business" is no broader than reasonably necessary to protect the legitimate business interests of Buyer and the Company, including the goodwill, Confidential Information, Trade Secrets, customer and collaborator relationships, and workforce stability acquired or to be preserved in connection with the Transactions;
(d) The consideration received by the Key Employee in connection with the Transactions, including the per-share consideration payable under the Purchase Agreement with respect to the Key Employee's equity holdings in the Company, together with the other benefits and consideration described herein, constitutes full, adequate, and sufficient consideration for the covenants and obligations of the Key Employee contained in this Agreement; and
(e) The restrictions set forth in this Article II will not prevent the Key Employee from earning a livelihood following the Closing, given the Key Employee's education, skills, abilities, and experience.
ARTICLE III — NON-SOLICITATION COVENANTS
Section 3.1 — Non-Solicitation of Employees. During the Restricted Period, the Key Employee shall not, directly or indirectly, whether on the Key Employee's own behalf or on behalf of any other Person:
(a) Solicit, recruit, hire, or attempt to Solicit, recruit, or hire any Person who is, or was at any time within the six (6) months immediately prior to the date of such Solicitation, an employee, officer, or independent contractor of the Company, Buyer, or any of their respective Affiliates; or
(b) induce, encourage, or attempt to induce or encourage any Person who is an employee, officer, or independent contractor of the Company, Buyer, or any of their respective Affiliates to terminate, diminish, or otherwise adversely modify his or her employment, engagement, or other relationship with the Company, Buyer, or any of their respective Affiliates.
Notwithstanding the foregoing, the restrictions set forth in this Section 3.1 shall not prohibit (i) general solicitations of employment through advertisements, job postings, or similar means of general circulation (including Internet job boards, social media platforms, and similar public forums) that are not specifically targeted at, or directed to, employees or independent contractors of the Company, Buyer, or any of their respective Affiliates, or (ii) the hiring of any Person who responds to any such general solicitation, so long as neither the Key Employee nor any Person acting at the Key Employee's direction or on the Key Employee's behalf specifically encouraged or induced such Person to respond to such general solicitation. For the avoidance of doubt, the use of a search firm, recruiting agency, or similar intermediary to target or approach employees or independent contractors of the Company, Buyer, or their respective Affiliates shall constitute a violation of this Section 3.1.
Section 3.2 — Non-Solicitation of Business Relationships. During the Restricted Period, the Key Employee shall not, directly or indirectly, whether on the Key Employee's own behalf or on behalf of any other Person:
(a) Solicit, divert, or take away, or attempt to Solicit, divert, or take away, any customer, client, collaborator, licensor, licensee, clinical trial site, principal investigator, sub-investigator, vendor, supplier, contract research organization, contract manufacturing organization, or other business relationship of the Company, Buyer, or any of their respective Affiliates, for the purpose of providing or receiving products, services, or technology competitive with the Business, or for the purpose of otherwise interfering with or diverting any aspect of the Business; or
(b) induce, encourage, or attempt to induce or encourage any such Person to terminate, reduce, curtail, or otherwise adversely modify its business, contractual, or commercial relationship with the Company, Buyer, or any of their respective Affiliates.
Section 3.3 — Non-Interference. During the Restricted Period, the Key Employee shall not, directly or indirectly, interfere with or disrupt, or attempt to interfere with or disrupt, the business, operations, contractual relationships, or business relationships of the Company, Buyer, or any of their respective Affiliates. Without limiting the generality of the foregoing, the Key Employee shall not make any disparaging or derogatory statements, whether written or oral, regarding the Company, Buyer, or any of their respective Affiliates, or any of their respective officers, directors, employees, products, services, or business practices, to any Person, including without limitation any employee, customer, collaborator, licensor, licensee, vendor, supplier, investor, analyst, or member of the media; provided, however, that the foregoing restriction shall not prohibit the Key Employee from making truthful statements (i) when required by applicable law, regulation, or legal process, or (ii) in connection with any legal proceeding in which the Key Employee is a party or witness.
ARTICLE IV — CONFIDENTIALITY
Section 4.1 — Confidentiality Obligations. The Key Employee acknowledges that, during the course of the Key Employee's employment and other engagement with the Company, the Key Employee has had access to and has obtained Confidential Information and Trade Secrets that are of significant competitive value to the Company and, following the Closing, to Buyer. The Key Employee shall not, at any time during or after the Restricted Period, directly or indirectly, disclose, reveal, publish, furnish, make accessible, or use for the Key Employee's own benefit or for the benefit of any third party, any Confidential Information or Trade Secrets, except:
(a) as required in the good-faith performance of the Key Employee's duties to Buyer or the Company following the Closing, and then only to Persons who have a need to know such information and who are bound by obligations of confidentiality no less restrictive than those contained herein;
(b) as required by applicable law, regulation, subpoena, civil investigative demand, court order, or other compulsory legal process; provided, however, that in the event the Key Employee is requested or required by any such process to disclose any Confidential Information or Trade Secrets, the Key Employee shall (to the extent legally permissible) provide Buyer with prompt written notice of such request or requirement so that Buyer may, at its sole expense, seek an appropriate protective order, confidentiality agreement, or other appropriate remedy, and the Key Employee shall reasonably cooperate with Buyer in connection with any such efforts; provided, further, that if such protective order or other remedy is not obtained, or if Buyer waives compliance with the provisions of this Section 4.1(b), the Key Employee shall disclose only that portion of the Confidential Information or Trade Secrets that the Key Employee is advised by counsel is legally required to be disclosed; or
(c) with the prior written consent of an authorized officer of Buyer.
The obligations of the Key Employee under this Section 4.1 with respect to Confidential Information shall continue for a period of five (5) years following the termination of the Key Employee's employment with the Company or Buyer (or such longer period as may be required by applicable law), and the obligations of the Key Employee under this Section 4.1 with respect to Trade Secrets shall continue for so long as the applicable information constitutes a Trade Secret under applicable law.
Section 4.2 — Return of Materials. Upon the Closing Date, or, if later, upon the termination of the Key Employee's employment or other engagement with the Company or Buyer for any reason, the Key Employee shall promptly:
(a) return to Buyer (or, if directed by Buyer, destroy) all originals and copies of documents, materials, files, records, correspondence, notebooks, reports, presentations, data compilations, electronic media, computer files, and other tangible or electronic items in the Key Employee's possession, custody, or control that contain, reflect, or are derived from Confidential Information or Trade Secrets, or that are otherwise the property of the Company or Buyer; and
(b) permanently delete all electronic copies of Confidential Information or Trade Secrets stored on any personal computers, mobile devices, cloud storage accounts, external drives, email accounts, or other electronic storage media owned, leased, or controlled by the Key Employee.
The Key Employee shall, upon Buyer's request, certify in writing that the Key Employee has complied with the requirements of this Section 4.2. Notwithstanding the foregoing, the Key Employee may retain (i) personal copies of the Key Employee's own compensation and benefit records, and (ii) documents or materials to the extent retention is required by applicable law or regulation, provided that such documents and materials shall remain subject to the confidentiality obligations set forth in this Article IV.
Section 4.3 — Defend Trade Secrets Act Notice. Pursuant to the Defend Trade Secrets Act of 2016 (18 U.S.C. § 1833(b)), the Key Employee is hereby notified as follows:
(a) An individual shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that (i) is made in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney, and solely for the purpose of reporting or investigating a suspected violation of law; or (ii) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.
(b) An individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual (i) files any document containing the trade secret under seal, and (ii) does not disclose the trade secret, except pursuant to court order.
Nothing in this Agreement is intended to conflict with, or shall be construed to limit, any rights of the Key Employee under the Defend Trade Secrets Act of 2016, the National Labor Relations Act, or any other applicable federal, state, or local law, including the right to make reports or disclosures to any governmental authority without prior authorization from or notification to Buyer.
ARTICLE V — INTELLECTUAL PROPERTY ASSIGNMENT
Section 5.1 — Assignment of Inventions. The Key Employee agrees and acknowledges that all inventions, discoveries, developments, improvements, innovations, ideas, concepts, works of authorship, designs, processes, methods, techniques, algorithms, software, data, databases, formulations, compounds, compositions of matter, biological materials, and all related intellectual property rights (including all patent rights, copyrights, trademark rights, trade secret rights, and all other intellectual property and proprietary rights, whether or not registrable) (collectively, "Inventions") that were conceived, created, developed, or reduced to practice by the Key Employee, whether alone or jointly with others, during the term of the Key Employee's employment or engagement with the Company (whether before or after the Closing), and that (a) relate to the Business, or (b) were created using the resources, facilities, equipment, or Confidential Information of the Company or Buyer, or (c) were created within the scope of the Key Employee's duties or responsibilities with the Company, are and shall be the sole and exclusive property of the Company (or, following the Closing, Buyer and its successors and assigns).
To the extent that any such Inventions are not already owned by the Company or Buyer by operation of law, the Key Employee hereby irrevocably assigns, transfers, and conveys to Buyer all of the Key Employee's right, title, and interest in and to such Inventions, including all intellectual property rights therein and thereto, effective as of the date of creation or conception of each such Invention, and agrees to execute and deliver such additional documents, instruments, and assignments as Buyer may reasonably request to evidence, perfect, or record such assignment. The Key Employee further agrees to waive and hereby waives any and all moral rights (including rights of attribution and integrity) that the Key Employee may have with respect to any such Inventions, to the fullest extent permitted by applicable law.
For the avoidance of doubt, the obligations set forth in this Section 5.1 are in addition to, and not in limitation of, any obligations of the Key Employee under any existing Inventions Assignment Agreement, Proprietary Information and Inventions Agreement, or similar agreement between the Key Employee and the Company, including without limitation any Inventions Assignment Agreement previously executed by the Key Employee in connection with the founding of the Company or the commencement of the Key Employee's employment therewith. In the event of any conflict between the terms of this Section 5.1 and the terms of any such prior agreement, the provisions that are more protective of Buyer's interests shall control.
Section 5.2 — Cooperation. The Key Employee shall, during and after the Restricted Period, reasonably cooperate with Buyer, at Buyer's sole cost and expense (including reimbursement of the Key Employee's reasonable out-of-pocket expenses), in connection with the preparation, prosecution, maintenance, enforcement, or defense of any patents, patent applications, trademarks, trademark applications, copyrights, copyright registrations, trade secrets, or other intellectual property rights related to the Business or any Inventions, including without limitation:
(a) providing truthful testimony and executing declarations, affidavits, assignments, powers of attorney, and other documents and instruments as may be reasonably necessary or desirable in connection with any patent prosecution, patent interference, inter partes review, post-grant review, opposition, reexamination, litigation, or other intellectual property proceeding;
(b) assisting in the preparation and filing of any patent application, continuation, divisional, continuation-in-part, or foreign counterpart application relating to any Invention; and
(c) providing technical information, explanations, and other assistance as may be reasonably requested by Buyer's patent counsel or intellectual property advisors.
The Key Employee acknowledges that Buyer's ability to protect and enforce the intellectual property rights acquired in connection with the Transactions is critical to the value of the Company's business, and the Key Employee agrees to make himself or herself reasonably available for such cooperation. Buyer shall use reasonable efforts to schedule any requests for cooperation at times that do not unreasonably interfere with the Key Employee's other professional obligations.
ARTICLE VI — REMEDIES
Section 6.1 — Equitable Relief. The Key Employee acknowledges and agrees that:
(a) A breach or threatened breach of any of the covenants or obligations of the Key Employee contained in this Agreement (including, without limitation, the covenants set forth in Articles II, III, IV, and V) would cause irreparable harm to Buyer and the Company, the nature and extent of which would be difficult or impossible to ascertain, and for which monetary damages alone would not constitute an adequate remedy;
(b) In the event of any such breach or threatened breach, Buyer shall be entitled to seek and obtain, in addition to any other remedies available at law or in equity (including monetary damages), temporary, preliminary, and permanent injunctive relief and orders of specific performance to enforce the provisions of this Agreement and to prevent or restrain any such breach or threatened breach, in each case without the necessity of (i) proving actual damages, (ii) posting a bond or other security, or (iii) establishing the inadequacy of monetary damages as a remedy (each of which requirements the Key Employee hereby waives to the fullest extent permitted by applicable law); and
(c) The rights and remedies of Buyer under this Agreement are cumulative and are in addition to, and not in substitution for, any other rights or remedies available to Buyer at law, in equity, or otherwise, including without limitation any rights or remedies under the Purchase Agreement.
Section 6.2 — Extension of Restricted Period. If the Key Employee violates any provision of Article II or Article III of this Agreement, the Restricted Period applicable to the covenant so violated shall be automatically extended by a period of time equal to the duration of such violation, commencing on the date on which such violation ceases, such that Buyer receives the full benefit of the agreed-upon duration of the Restricted Period. The extension provided for in this Section 6.2 shall be in addition to, and not in limitation of, any other remedies available to Buyer under this Agreement or otherwise.
Section 6.3 — Indemnification. The Key Employee shall indemnify, defend, and hold harmless Buyer and its Affiliates (including, following the Closing, the Company), and their respective officers, directors, employees, agents, successors, and assigns (collectively, the "Buyer Indemnified Parties"), from and against any and all losses, damages, liabilities, deficiencies, claims, actions, suits, proceedings, judgments, awards, fines, penalties, costs, and expenses (including reasonable attorneys' fees and disbursements, costs of investigation, and costs of enforcement of indemnification rights) (collectively, "Losses") arising out of, resulting from, or in connection with any breach or violation by the Key Employee of any covenant, obligation, representation, or warranty contained in this Agreement.
The indemnification obligations set forth in this Section 6.3 are in addition to, and not in lieu of, any indemnification obligations of the Sellers (including the Key Employee in such capacity) under Article IX of the Purchase Agreement or under any other agreement between the Key Employee and Buyer, and shall not be subject to any limitations on indemnification set forth in the Purchase Agreement unless expressly stated therein. The indemnification obligations of the Key Employee under this Section 6.3 shall survive the expiration or termination of the Restricted Period and shall continue until the expiration of the applicable statute of limitations period.
ARTICLE VII — REPRESENTATIONS AND ACKNOWLEDGMENTS
Section 7.1 — Key Employee's Representations. The Key Employee hereby represents and warrants to Buyer as follows:
(a) The Key Employee has the legal capacity and right to execute, deliver, and perform this Agreement. This Agreement has been duly executed and delivered by the Key Employee and constitutes the legal, valid, and binding obligation of the Key Employee, enforceable against the Key Employee in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, and other similar laws affecting the enforcement of creditors' rights generally and to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity);
(b) The execution, delivery, and performance of this Agreement by the Key Employee will not conflict with, result in a breach or violation of, or constitute a default (or an event that, with or without notice or the lapse of time or both, would constitute a default) under, any agreement, obligation, commitment, order, judgment, decree, law, rule, or regulation to which the Key Employee is a party or by which the Key Employee or any of the Key Employee's properties or assets is bound;
(c) The Key Employee has had a full and adequate opportunity to consult with independent legal counsel of the Key Employee's own choosing regarding the terms, conditions, and legal effects of this Agreement, and the Key Employee has either consulted with such counsel or has voluntarily elected not to do so;
(d) The Key Employee has carefully read this Agreement in its entirety, fully understands each of the provisions hereof, and is entering into this Agreement voluntarily and of the Key Employee's own free will, with full knowledge of the terms and consequences hereof;
(e) The restrictions on the Key Employee's activities contained in Articles II, III, IV, and V of this Agreement are reasonable in scope, duration, and geographic area, and are necessary and appropriate to protect Buyer's legitimate business interests, including the goodwill, Confidential Information, Trade Secrets, customer and business relationships, and workforce stability acquired or to be preserved in connection with the Transactions; and
(f) Schedule A to this Agreement sets forth a true, correct, and complete list of all existing non-competition, non-solicitation, confidentiality, or similar restrictive covenant agreements to which the Key Employee is a party as of the Effective Date.
Section 7.2 — Adequate Consideration. The Key Employee acknowledges and agrees that the consideration received by the Key Employee in connection with the Transactions, including without limitation the per-share consideration payable under the Purchase Agreement with respect to the Key Employee's equity holdings in the Company (as set forth on Schedule A hereto), the continued employment opportunities with the Company and Buyer following the Closing, and the other benefits and consideration provided to the Key Employee, constitutes full, adequate, and sufficient consideration for the covenants, restrictions, and obligations of the Key Employee contained in this Agreement. The Key Employee further acknowledges that the Key Employee would not have received such consideration but for the Key Employee's agreement to be bound by the terms and conditions of this Agreement.
ARTICLE VIII — GENERAL PROVISIONS
Section 8.1 — Governing Law. This Agreement and any claim, controversy, or dispute arising out of or relating to this Agreement, or the negotiation, execution, validity, interpretation, performance, breach, or termination hereof, shall be governed by, and construed and enforced in accordance with, the internal laws of the State of Delaware, without giving effect to any choice-of-law or conflict-of-laws rules or principles that would cause the application of the laws of any jurisdiction other than the State of Delaware.
Section 8.2 — 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, any federal court of the United States of America sitting in the State of Delaware, and if no such federal court accepts jurisdiction, any state court of the State of Delaware) for the purposes of any action, suit, or proceeding arising out of or relating to this Agreement, and each Party agrees not to commence any such action, suit, or proceeding except in such courts. Each Party hereby irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, (a) any objection that it may now or hereafter have to the laying of venue of any such action, suit, or proceeding in any such court, and (b) the defense of an inconvenient forum to the maintenance of any such action, suit, or proceeding in any such court. Each Party further agrees that service of process, summons, notice, or document by registered mail, return receipt requested, to such Party's address set forth in Section 8.8 of this Agreement (or as otherwise updated in accordance therewith) shall be effective service of process for any such action, suit, or proceeding brought in any such court.
Section 8.3 — Waiver of Jury Trial. EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND 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 TRANSACTIONS CONTEMPLATED HEREBY, OR THE ACTIONS OF EITHER PARTY IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE, OR ENFORCEMENT HEREOF. EACH PARTY (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT, OR ATTORNEY OF THE OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF ANY SUCH ACTION, SUIT, OR PROCEEDING, SEEK TO ENFORCE THE FOREGOING WAIVER, AND (B) ACKNOWLEDGES THAT IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS SET FORTH IN THIS SECTION 8.3.
Section 8.4 — Severability and Judicial Modification. If any provision of this Agreement (or any portion thereof) is held to be invalid, illegal, or unenforceable by a court of competent jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other provision of this Agreement (or the remaining portion of the affected provision), and all other provisions of this Agreement (and the remaining portions of affected provisions) shall remain in full force and effect. In the event that any court of competent jurisdiction shall determine that the duration, scope, area, or any other aspect of any restrictive covenant contained in this Agreement is unreasonable, overly broad, or otherwise unenforceable, it is the intention and agreement of the Parties that such court shall exercise its discretion to reduce, modify, reform, or limit such provision to the minimum extent necessary to render it valid and enforceable, and shall enforce such provision as so reduced, modified, reformed, or limited. The Parties acknowledge and agree that this Section 8.4 is intended to constitute a "blue pencil" and judicial modification provision, and that the Parties would have entered into this Agreement with any such reduced, modified, reformed, or limited provision in lieu of the original provision as drafted. Each Party further acknowledges that such Party has been advised by legal counsel with respect to this provision.
Section 8.5 — Entire Agreement. This Agreement, together with the Purchase Agreement, any exhibits and schedules hereto and thereto, and any other agreements or instruments expressly referenced herein or therein, constitutes the entire agreement and understanding between the Parties with respect to the subject matter hereof and supersedes all prior and contemporaneous negotiations, representations, warranties, commitments, offers, contracts, agreements, and understandings (whether written or oral) between the Parties with respect to such subject matter. Notwithstanding the foregoing, nothing in this Agreement shall be deemed to supersede or terminate any obligations of the Key Employee under any existing Inventions Assignment Agreement or Proprietary Information and Inventions Agreement between the Key Employee and the Company, to the extent such obligations are not inconsistent with the terms of this Agreement.
Section 8.6 — Amendment and Waiver. This Agreement may not be amended, modified, supplemented, or restated except by a written instrument duly executed by both Parties. No waiver by either Party of any breach or default of any term, condition, or provision of this Agreement shall be deemed a waiver of any other or subsequent breach or default, whether of a similar or different nature. 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. Any waiver must be in writing and signed by the Party granting such waiver to be effective.
Section 8.7 — Assignment. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective heirs, executors, administrators, personal representatives, successors, and permitted assigns. The Key Employee may not assign, delegate, or otherwise transfer this Agreement or any of the Key Employee's rights or obligations hereunder, in whole or in part, without the prior written consent of Buyer, and any attempted assignment, delegation, or transfer without such consent shall be null and void and of no force or effect. Buyer may, without the consent of the Key Employee, assign any or all of its rights and obligations under this Agreement to (a) any Affiliate of Buyer, (b) any successor in interest (whether by merger, consolidation, acquisition, or otherwise) to all or substantially all of the business or assets of Buyer or the Company, or (c) any purchaser of all or substantially all of the equity interests or assets of the Company; provided, however, that no such assignment shall relieve Buyer of its obligations under this Agreement unless the assignee expressly assumes such obligations in writing.
Section 8.8 — Notices. All notices, demands, requests, consents, approvals, and other communications required or permitted under this Agreement shall be in writing and shall be deemed to have been duly given and received (a) upon delivery, if delivered personally (including by nationally recognized overnight courier service) to the Party to be notified, (b) upon sending, if sent by electronic mail during normal business hours of the recipient (and if not sent during normal business hours, then on the next Business Day), or (c) five (5) Business Days after deposit in the United States mail, certified or registered, return receipt requested, postage prepaid, in each case addressed to the Party to be notified at the following addresses (or at such other address as such Party may designate by written notice to the other Party in accordance with this Section 8.8):
If to Buyer:
Penterra Pharmaceuticals Corp. 1400 Innovation Drive, Suite 800 Wilmington, Delaware 19801
Attention: General Counsel
Email: [Insert email]
With a copy to (which shall not constitute notice):
Calderwood & Harkness LLP 200 Park Avenue, 42nd Floor New York, NY 10166
Attention: [Insert attorney name]
Email: [Insert email]
If to the Key Employee:
[Insert name of Key Employee] [Insert address of Key Employee]
Email: [Insert email]
With a copy to (which shall not constitute notice):
[Insert name and address of Key Employee's counsel, if applicable]
Email: [Insert email]
All notices delivered in accordance with the notice provisions of the Purchase Agreement shall be deemed to have been delivered in compliance with this Section 8.8 to the extent consistent herewith.
Section 8.9 — Counterparts. This Agreement may be executed in any number of counterparts (including by means of facsimile or portable document format (.pdf) signature pages), each of which when so executed and delivered shall be deemed an original, and all of which taken together shall constitute one and the same instrument. Delivery of an executed counterpart of a signature page of this Agreement by facsimile transmission, by electronic mail in portable document format (.pdf), or by any other electronic means intended to preserve the original graphic and pictorial appearance of a document, shall be as effective as delivery of a manually executed counterpart of this Agreement.
Section 8.10 — Third-Party Beneficiaries. The Company and its Affiliates (including, following the Closing, the subsidiaries and Affiliates of Buyer) are intended third-party beneficiaries of this Agreement and shall have the right, without the consent of any other Person, to enforce any and all provisions of this Agreement as if they were parties hereto. Except as expressly set forth in the preceding sentence, this Agreement is not intended to and shall not be construed to give any Person other than the Parties any legal or equitable right, remedy, or claim under or with respect to this Agreement.
Section 8.11 — Survival. The covenants, agreements, representations, and warranties of the Key Employee contained in this Agreement shall survive the Closing and the consummation of the Transactions, and shall not be affected by any investigation or examination conducted by or on behalf of Buyer, whether before or after the Closing, or by any information that Buyer may have or obtain with respect thereto. Without limiting the generality of the foregoing, the provisions of Article IV (Confidentiality), Article V (Intellectual Property Assignment), Article VI (Remedies), and Article VIII (General Provisions) shall survive the expiration or termination of the Restricted Period and the termination of the Key Employee's employment or engagement with the Company or Buyer.
Section 8.12 — Relationship to Purchase Agreement. This Agreement is being executed and delivered pursuant to, and as contemplated by, the Purchase Agreement. The Parties acknowledge and agree that this Agreement is one of the ancillary agreements contemplated by the Purchase Agreement, and the execution and delivery of this Agreement by the Key Employee is an express condition to Buyer's obligations to consummate the Closing under the Purchase Agreement. In the event of any irreconcilable conflict between the terms and provisions of this Agreement and the terms and provisions of the Purchase Agreement, the terms and provisions of the Purchase Agreement shall control and prevail, and this Agreement shall be interpreted and construed so as to give effect to the terms and provisions of the Purchase Agreement to the fullest extent possible. Nothing in this Agreement shall limit, modify, reduce, or otherwise affect any rights, remedies, or obligations of any party under the Purchase Agreement, including without limitation the indemnification provisions set forth in Article IX thereof, and the rights and obligations of the Parties under this Agreement shall be in addition to, and not in limitation or substitution of, any rights or obligations arising under the Purchase Agreement.
[Remainder of this page intentionally left blank. Signature page follows.]
SIGNATURE PAGE TO NON-COMPETITION AND NON-SOLICITATION AGREEMENT
IN WITNESS WHEREOF, the Parties have duly executed this Non-Competition and Non-Solicitation Agreement as of the date first written above.
BUYER:
PENTERRA PHARMACEUTICALS CORP.
By: ________
Name: [Insert name]
Title: [Insert title]
Date: ________
KEY EMPLOYEE:
________________________________________
Name: [Insert name of Key Employee]
Address: [Insert address]
Date: ________
SCHEDULE A
KEY EMPLOYEE INFORMATION
Instructional Note: This Schedule A is to be completed separately for each Key Employee at the time of execution. One fully executed original of this Agreement, together with a completed Schedule A, shall be prepared for each Key Employee identified below. The Key Employees for whom this form is intended include Dr. Julian Marek (CEO & Co-Founder) and Dr. Priya Chandrasekaran (CSO & Co-Founder) of Veridian Biosciences, Inc.
Name of Key Employee: [Insert]
Title / Position with the Company: [Insert, e.g., Chief Executive Officer & Co-Founder; Chief Scientific Officer & Co-Founder]
Equity Ownership in the Company (fully diluted basis): [Insert percentage, e.g., 8.4%; 6.2%]
Home Address:
[Insert street address] [Insert city, state, zip code]
Email Address: [Insert]
Telephone Number: [Insert]
Description of any existing non-competition, non-solicitation, confidentiality, or similar restrictive covenant agreements to which the Key Employee is a party (other than this Agreement):
[Insert description of each such agreement, including the names of the parties thereto, the date of execution, and a summary of the material restrictive covenants contained therein; or state "None" if no such agreements exist]
Acknowledged and confirmed by the Key Employee:
________________________________________
Name: [Insert name of Key Employee]
Date: ________

FORM OF NON-COMPETITION AND NON-SOLICITATION AGREEMENT

NON-COMPETITION AND NON-SOLICITATION AGREEMENT

RECITALS

SIGNATURE PAGE TO NON-COMPETITION AND NON-SOLICITATION AGREEMENT

PENTERRA PHARMACEUTICALS CORP.

KEY EMPLOYEE:

SCHEDULE A

KEY EMPLOYEE INFORMATION

Record

Parties

Dates

Amounts