MUTUAL NON-DISCLOSURE AGREEMENT
Effective Date: July 11, 2022
This Mutual Non-Disclosure Agreement (this "Agreement") is entered into as of July 11, 2022 (the "Effective Date"), by and between:
GREENFIELD AGRICULTURAL PARTNERS LLC, an Iowa limited liability company, with its principal office at 4100 Grand Prairie Drive, Suite 300, Des Moines, Iowa 50309 ("Greenfield" or "Party A");
and
TERRAVAULT BIOSCIENCES INC., a Delaware corporation qualified to do business in the State of Illinois, with its principal office at 1720 Innovation Parkway, Champaign, Illinois 61820 ("TerraVault" or "Party B").
Greenfield and TerraVault are sometimes referred to herein collectively as the "Parties" and individually as a "Party."
RECITALS
WHEREAS, Greenfield Agricultural Partners LLC is a strategic private investment firm focused on the agriculture and chemicals sectors, currently managing approximately Six Hundred Eighty Million Dollars ($680,000,000) in committed capital across three fund vintages, and investing primarily in Midwest-based agricultural inputs, crop technology, and specialty chemicals businesses;
WHEREAS, TerraVault BioSciences Inc. is a precision agriculture technology company that has developed the proprietary SoilPulse™ real-time soil nutrient and moisture sensor platform, which is currently deployed in pilot programs covering approximately forty-five thousand (45,000) acres across the States of Illinois, Indiana, and Iowa;
WHEREAS, the Parties desire to explore and evaluate a potential joint venture for the development, manufacturing, and commercialization of integrated soil-health sensor systems for commercial row-crop agriculture in the United States Midwest (the "Purpose" or the "Proposed Transaction");
WHEREAS, in connection with the evaluation of the Proposed Transaction, each Party anticipates that it may disclose to the other Party, and the other Party may receive, certain confidential and proprietary information, including without limitation technical specifications, financial data, business plans, trade secrets, and other sensitive materials;
WHEREAS, the Parties wish to establish the terms and conditions under which such confidential information will be disclosed, received, handled, and protected, and to set forth their respective rights and obligations with respect thereto;
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
ARTICLE 1: DEFINITIONS
Section 1.1 — "Confidential Information"
(a) As used in this Agreement, "Confidential Information" means all information, whether written, oral, electronic, visual, or in any other form or medium, that is disclosed by or on behalf of either Party (in its capacity as the "Disclosing Party") to the other Party (in its capacity as the "Receiving Party"), or to any of the Receiving Party's Representatives, in connection with the Purpose, whether before or after the Effective Date of this Agreement. Without limiting the generality of the foregoing, Confidential Information includes the following categories of information, in each case to the extent relating to or belonging to the Disclosing Party, its affiliates, or its portfolio companies (in the case of Greenfield):
(i) business plans, strategic plans, marketing plans, marketing strategies, market analyses, competitive intelligence, and market research data;
(ii) financial information, financial statements, financial projections, revenue figures, EBITDA data, budgets, cost structures, pricing information, and capital expenditure plans;
(iii) customer lists, supplier lists, vendor contracts, distribution agreements, and other commercial arrangements;
(iv) research and development data, technical data, technical specifications, engineering designs, sensor technology specifications, hardware schematics, firmware architecture, calibration protocols, algorithms, software (including source code and object code), databases, and data sets;
(v) trade secrets, know-how, inventions, discoveries, improvements, methods, processes, techniques, and formulae;
(vi) patent applications, patents (including specifically, but without limitation, U.S. Patent No. 10,842,317 and U.S. Patent Application No. 17/509,664), trademarks (including U.S. Registration No. 6,318,205 for the SoilPulse™ mark), copyrights, and any other intellectual property or intellectual property rights;
(vii) pilot program data, field trial results, agronomic data, soil composition data, performance metrics, deployment schedules, and commercialization timelines;
(viii) investor information, capital structure information, fund information (including limited partner identities, capital commitments, and fund terms), portfolio company information, investment theses, and investment pipeline data;
(ix) personnel information, employee compensation data, organizational charts, management structures, and information regarding key personnel; and
(x) any other proprietary, non-public, or sensitive information relating to the business, operations, assets, liabilities, financial condition, prospects, technology, or intellectual property of the Disclosing Party.
(b) Confidential Information shall also include all notes, analyses, compilations, studies, interpretations, memoranda, summaries, extracts, models, or other documents or materials prepared by the Receiving Party or any of its Representatives that contain, reflect, or are based upon, in whole or in part, any of the Confidential Information furnished by or on behalf of the Disclosing Party (collectively, "Derivative Materials"). All such Derivative Materials shall be deemed to be Confidential Information of the Disclosing Party for all purposes under this Agreement.
(c) Information disclosed hereunder need not be marked or otherwise designated as "confidential," "proprietary," or with any similar legend in order to qualify as Confidential Information under this Agreement. In the case of information disclosed orally, visually, or by demonstration, such information shall be deemed Confidential Information if (i) it would reasonably be understood to be confidential by a person familiar with the Disclosing Party's business, or (ii) the Disclosing Party provides written confirmation to the Receiving Party identifying such information as confidential within ten (10) business days following the date of such oral, visual, or demonstrative disclosure. The failure to provide such written confirmation shall not, however, preclude information from being treated as Confidential Information if such information would otherwise qualify under the provisions of this Section 1.1.
Section 1.2 — "Representatives"
(a) As used in this Agreement, "Representatives" means, with respect to each Party, such Party's directors, officers, managers, members, employees, agents, advisors (including, without limitation, financial advisors, legal counsel, accountants, consultants, and technical advisors), and affiliates, in each case who receive Confidential Information in connection with the Purpose.
(b) Without limiting the generality of the foregoing, the term "Representatives" shall include:
(i) With respect to Greenfield: personnel of Greenfield, including Marcus J. Linden (Founder & Managing Partner) and Rachel Yun-Park (Chief Financial Officer), as well as advisors and consultants retained by or on behalf of Greenfield in connection with the Proposed Transaction, including Calderwood & Harkness LLP (legal counsel), Clarendon & Marsh CPAs LLP (accountants), and Velthorn IP Consulting LLC (Intellectual property consultants); and
(ii) With respect to TerraVault: personnel of TerraVault, including Dr. Anand Mehta (Co-Founder & Chief Executive Officer) and Dr. Lian Xu (Co-Founder & Chief Technology Officer), as well as advisors and consultants retained by or on behalf of TerraVault in connection with the Proposed Transaction, including Whitfield, Carey & Stokes LLP (legal counsel) and Ridgeline Advisors LLC (financial advisor).
(c) Each Party may update its list of Representatives from time to time by providing written notice to the other Party, and such updated list shall be effective upon receipt by the other Party.
Section 1.3 — "Purpose"
As used in this Agreement, "Purpose" means the evaluation, negotiation, and potential consummation of a joint venture between the Parties relating to precision agriculture soil-health sensor technology, including the potential formation of a joint venture entity for the development, manufacturing, and commercialization of integrated soil-health sensor systems for commercial row-crop agriculture in the United States Midwest, and any due diligence, analysis, structuring discussions, and related activities undertaken by the Parties and their Representatives in connection therewith.
Section 1.4 — "Disclosing Party" and "Receiving Party"
As used in this Agreement, "Disclosing Party" means a Party that discloses, or on whose behalf there is disclosed, Confidential Information to the other Party or its Representatives, and "Receiving Party" means a Party that receives Confidential Information from the other Party or on behalf of the other Party. Because this Agreement is mutual in nature, each Party may serve as a Disclosing Party and as a Receiving Party depending on the direction in which Confidential Information flows.
ARTICLE 2: OBLIGATIONS OF THE RECEIVING PARTY
Section 2.1 — Confidentiality and Non-Use
(a) The Receiving Party shall (i) hold all Confidential Information of the Disclosing Party in strict confidence, (ii) not disclose, publish, disseminate, or otherwise make available any Confidential Information to any person or entity except as expressly permitted under this Agreement, and (iii) not use any Confidential Information for any purpose whatsoever other than the Purpose.
(b) The Receiving Party shall protect the confidentiality of the Confidential Information using at least the same degree of care that it uses to protect the confidentiality of its own confidential and proprietary information of like kind and importance, but in no event less than a reasonable degree of care. Each Party represents and warrants that the standard of care it applies to its own confidential information is no less than a reasonable standard of care.
(c) Without limiting the foregoing, the Receiving Party shall not, and shall cause its Representatives not to, (i) reverse engineer, decompile, or disassemble any Confidential Information, including without limitation any software, algorithms, hardware, firmware, or sensor technology specifications provided by the Disclosing Party, or (ii) use any Confidential Information to develop competing products, services, or technologies, or for any other commercial purpose other than the Purpose.
Section 2.2 — Permitted Disclosures to Representatives
(a) Notwithstanding Section 2.1, the Receiving Party may disclose Confidential Information to those of its Representatives who (i) have a bona fide need to know such information in connection with the Purpose, and (ii) have been informed of the confidential nature of the Confidential Information and are bound by confidentiality obligations no less restrictive than those set forth in this Agreement, whether pursuant to the terms of this Agreement, a separate confidentiality agreement, professional ethical obligations, or other binding obligations.
(b) The Receiving Party shall be fully responsible and liable for any breach of this Agreement by any of its Representatives, and agrees that any act or omission of its Representatives that, if committed by the Receiving Party, would constitute a breach of this Agreement shall be deemed a breach of this Agreement by the Receiving Party. The Receiving Party shall take all reasonable steps to ensure that its Representatives comply with the terms and conditions of this Agreement.
(c) Prior to disclosing any Confidential Information to any Representative, the Receiving Party shall provide such Representative with a copy of this Agreement or a written summary of the confidentiality obligations set forth herein, and shall obtain such Representative's written acknowledgment of and agreement to be bound by such obligations, unless such Representative is already bound by professional ethical obligations of confidentiality (as in the case of legal counsel or accountants).
Section 2.3 — No License
(a) Nothing in this Agreement shall be construed as granting to the Receiving Party or any of its Representatives any license, by implication, estoppel, or otherwise, under any patent, trademark, copyright, trade secret, mask work right, or other intellectual property right of the Disclosing Party. The disclosure of Confidential Information under this Agreement does not constitute and shall not be construed as constituting a grant of any right to make, use, sell, offer for sale, import, or otherwise exploit any product or service embodying or incorporating any Confidential Information.
(b) All Confidential Information shall remain the sole and exclusive property of the Disclosing Party. The Receiving Party acknowledges that it acquires no ownership interest in or to any Confidential Information by virtue of disclosure under this Agreement, and that all rights, title, and interest in and to the Confidential Information, including without limitation all intellectual property rights therein, shall remain with the Disclosing Party.
ARTICLE 3: EXCLUSIONS FROM CONFIDENTIAL INFORMATION
Section 3.1 — Exclusions
The obligations set forth in this Agreement with respect to Confidential Information shall not apply to information that the Receiving Party can demonstrate by competent evidence:
(a) is or becomes generally available to the public other than as a result of a disclosure by the Receiving Party or any of its Representatives in violation of this Agreement or any other obligation of confidentiality owed to the Disclosing Party;
(b) was already in the possession of the Receiving Party on a non-confidential basis prior to disclosure by or on behalf of the Disclosing Party, as evidenced by the Receiving Party's contemporaneous written records existing prior to the date of disclosure;
(c) is or becomes available to the Receiving Party on a non-confidential basis from a source other than the Disclosing Party or any of the Disclosing Party's Representatives, provided that such source is not known by the Receiving Party to be bound by a confidentiality agreement with, or other contractual, legal, or fiduciary obligation of confidentiality to, the Disclosing Party with respect to such information; or
(d) is independently developed by the Receiving Party or its Representatives without reference to, reliance upon, or use of any of the Disclosing Party's Confidential Information, as evidenced by the Receiving Party's contemporaneous written records, including development logs, laboratory notebooks, electronic records, or other documentary evidence sufficient to establish independent development.
The burden of proof with respect to any exclusion set forth in this Section 3.1 shall rest with the Receiving Party claiming such exclusion. A specific item of Confidential Information shall not be deemed to fall within the foregoing exclusions merely because the information is embraced by more general information in the public domain, or merely because individual features, components, or elements of such information are in the public domain if the specific combination, arrangement, or compilation of such features, components, or elements is not itself in the public domain.
ARTICLE 4: COMPELLED DISCLOSURE
Section 4.1 — Legal Process
(a) If the Receiving Party or any of its Representatives is requested or required by applicable law, rule, regulation, legal process (including, without limitation, a subpoena, civil investigative demand, interrogatory, request for production of documents, or similar compulsory process), or by any governmental, regulatory, or self-regulatory authority or body (including, without limitation, the U.S. Securities and Exchange Commission, the U.S. Department of Justice, the Federal Trade Commission, the Internal Revenue Service, or any state attorney general) to disclose any Confidential Information of the Disclosing Party, the Receiving Party shall:
(i) to the extent legally permitted and practicable under the circumstances, provide prompt written notice to the Disclosing Party of such request or requirement prior to making any such disclosure, which notice shall include a description of the Confidential Information requested, the identity of the requesting party or authority, and the date by which such disclosure is required, so that the Disclosing Party may, at its sole cost and expense, seek a protective order, injunction, or other appropriate remedy, or waive compliance with the relevant provisions of this Agreement;
(ii) cooperate with the Disclosing Party, at the Disclosing Party's sole cost and expense, in seeking any such protective order, injunction, or other remedy, including by joining in any motion or proceeding initiated by the Disclosing Party, or by supporting any argument made by the Disclosing Party in opposition to disclosure; and
(iii) if such protective order, injunction, or other remedy is not obtained, or if the Disclosing Party waives compliance with the relevant provisions of this Agreement, the Receiving Party may disclose only that portion of the Confidential Information that is legally required to be disclosed, and shall exercise commercially reasonable efforts to obtain reliable assurance that confidential treatment will be afforded to the Confidential Information so disclosed, including by requesting that any court, tribunal, or governmental authority receiving such Confidential Information maintain it under seal or subject to a protective order.
(b) For the avoidance of doubt, any Confidential Information disclosed pursuant to this Section 4.1 shall continue to be deemed Confidential Information for all other purposes under this Agreement, and the compelled disclosure of Confidential Information pursuant to this Section 4.1 shall not constitute a breach of this Agreement by the Receiving Party or its Representatives.
ARTICLE 5: RETURN OR DESTRUCTION OF CONFIDENTIAL INFORMATION
Section 5.1 — Return/Destruction Obligation
(a) Upon the written request of the Disclosing Party at any time, or upon the expiration or termination of this Agreement, whichever occurs first, the Receiving Party shall, at the Disclosing Party's election (as communicated in writing to the Receiving Party), promptly, and in any event within fifteen (15) business days of such request, expiration, or termination:
(i) return to the Disclosing Party all tangible and electronic materials containing, reflecting, or constituting Confidential Information of the Disclosing Party, including all copies, reproductions, extracts, summaries, and Derivative Materials thereof, in whatever form or medium; or
(ii) destroy all such tangible and electronic materials and Derivative Materials, and certify such destruction in writing to the Disclosing Party by delivery of a certificate of destruction signed by a duly authorized officer of the Receiving Party, which certificate shall confirm that all Confidential Information (including all copies, reproductions, extracts, summaries, and Derivative Materials) has been destroyed in accordance with this Section 5.1.
(b) Notwithstanding the foregoing, the Receiving Party may retain copies of Confidential Information:
(i) to the extent required by applicable law, rule, or regulation, or by the rules or requirements of any applicable governmental, regulatory, or self-regulatory authority or body; or
(ii) in accordance with a bona fide document retention policy consistently applied across the Receiving Party's organization, or in automatic electronic back-up systems or archival storage systems maintained in the ordinary course of business;
provided, in each case, that any Confidential Information retained pursuant to this Section 5.1(b) shall remain subject to the confidentiality and non-use obligations of this Agreement for as long as such Confidential Information is retained by the Receiving Party or its Representatives, and shall not be accessed or used by the Receiving Party or its Representatives for any purpose other than compliance with such law, regulation, or retention policy.
Section 5.2 — Survival of Obligations on Retained Copies
The confidentiality and non-use obligations set forth in this Agreement shall continue to apply in full force and effect to any and all Confidential Information retained by the Receiving Party or its Representatives in accordance with Section 5.1(b) above, and such obligations shall survive the return or destruction of other Confidential Information and shall survive the expiration or termination of this Agreement, in each case for so long as such Confidential Information is retained.
ARTICLE 6: NO OBLIGATION TO PROCEED; NO REPRESENTATIONS OR WARRANTIES
Section 6.1 — No Obligation
Nothing in this Agreement shall be construed or interpreted as (a) obligating either Party to proceed with the Proposed Transaction or any other transaction or business arrangement, (b) creating any binding obligation on either Party to negotiate or consummate any definitive agreement relating to the Proposed Transaction, or (c) conferring any exclusive rights upon either Party with respect to the Proposed Transaction or any related matter. Each Party acknowledges and agrees that, unless and until a definitive written agreement with respect to the Proposed Transaction has been executed and delivered by both Parties, neither Party shall have any legal obligation of any kind whatsoever to the other Party with respect to the Proposed Transaction, whether by virtue of this Agreement, any written or oral expression with respect to the Proposed Transaction by any of its Representatives, or otherwise. Either Party may, in its sole and absolute discretion, terminate discussions and negotiations relating to the Proposed Transaction at any time, for any reason, or for no reason, without any liability or obligation to the other Party, except as expressly provided in this Agreement.
Section 6.2 — No Representation or Warranty
(a) All Confidential Information is provided on an "as is" basis. Neither the Disclosing Party, nor any of its Representatives, makes any representation or warranty, express or implied, as to the accuracy, completeness, reliability, fitness for a particular purpose, merchantability, non-infringement, or any other quality or characteristic of any Confidential Information disclosed under this Agreement. Without limiting the generality of the foregoing, neither the Disclosing Party nor any of its Representatives makes any representation or warranty that any financial projections, forecasts, estimates, or forward-looking information included in the Confidential Information will be achieved or realized.
(b) Neither the Disclosing Party, nor any of its Representatives, shall have any liability whatsoever to the Receiving Party or any of its Representatives relating to or resulting from the Receiving Party's or its Representatives' use of, or reliance upon, any Confidential Information, or any errors, omissions, or inaccuracies therein, except to the extent that any such errors, omissions, or inaccuracies are the subject of representations and warranties expressly set forth in a separate definitive agreement executed and delivered by the Parties.
ARTICLE 7: NON-SOLICITATION OF EMPLOYEES
Section 7.1 — Non-Solicitation
(a) For a period of one (1) year following the Effective Date of this Agreement, neither Party shall, directly or indirectly, whether through its affiliates, subsidiaries, Representatives, or any other person or entity acting on its behalf, solicit for employment, hire, engage as a consultant or independent contractor, or otherwise seek to entice away from the other Party, any employee of the other Party with whom the soliciting Party or any of its Representatives first had contact, or who first became known to the soliciting Party or any of its Representatives, in connection with the evaluation of the Proposed Transaction.
(b) Notwithstanding the foregoing, this restriction shall not apply to:
(i) general advertisements, postings, or solicitations of employment (including, without limitation, postings on internet job boards, social media platforms, or in newspapers, trade journals, or similar publications of general circulation) that are not specifically directed at or targeted to the employees of the other Party; or
(ii) any person who was terminated by, or who voluntarily resigned from, the other Party prior to the date of such solicitation, hiring, or engagement by the soliciting Party.
(c) For the avoidance of doubt, nothing in this Section 7.1 shall prohibit either Party from hiring any employee of the other Party who responds to a general advertisement or solicitation described in Section 7.1(b)(i) above, provided that such general advertisement or solicitation was not designed, intended, or implemented as a means of circumventing the restrictions set forth in this Section 7.1.
ARTICLE 8: REMEDIES
Section 8.1 — Equitable Relief
Each Party acknowledges and agrees that (a) the Confidential Information of the Disclosing Party is unique and valuable, (b) any breach or threatened breach of this Agreement by the Receiving Party or any of its Representatives may result in irreparable harm and continuing damages to the Disclosing Party for which money damages alone may not be a sufficient or adequate remedy, and (c) the Disclosing Party shall be entitled, without the requirement of posting any bond, surety, or other security, and without proof of actual damages, to seek equitable relief, including injunctive relief (whether preliminary, temporary, or permanent) and specific performance, in any court of competent jurisdiction, in addition to any and all other rights and remedies available to it at law or in equity. The pursuit of equitable relief shall not be deemed to be the exclusive remedy for any breach or threatened breach of this Agreement but shall be in addition to all other remedies available at law or in equity, including without limitation the recovery of monetary damages.
Section 8.2 — Indemnification
The Receiving Party shall indemnify, defend, and hold harmless the Disclosing Party and each of the Disclosing Party's Representatives, and their respective successors and assigns, from and against any and all losses, damages, liabilities, claims, demands, actions, judgments, settlements, penalties, fines, costs, and expenses (including, without limitation, reasonable attorneys' fees, expert witness fees, court costs, and other costs of investigation and litigation) arising out of, resulting from, or relating to any breach or alleged breach of this Agreement by the Receiving Party or any of its Representatives. The indemnification obligations set forth in this Section 8.2 shall survive the expiration or termination of this Agreement.
ARTICLE 9: TERM AND TERMINATION
Section 9.1 — Term
This Agreement shall be effective as of the Effective Date and shall remain in full force and effect for a period of two (2) years from the Effective Date (i.e., through and including July 11, 2024), unless earlier terminated by the mutual written agreement of both Parties. Upon expiration of the initial two (2) year term, this Agreement shall automatically terminate without further action by either Party, subject to the survival provisions set forth in Section 9.2 below.
Section 9.2 — Survival
(a) Notwithstanding the expiration or termination of this Agreement, the confidentiality and non-use obligations of each Receiving Party with respect to Confidential Information received during the term of this Agreement (including, without limitation, all Derivative Materials) shall survive the expiration or termination of this Agreement for a period of two (2) years following the date of such expiration or termination (i.e., through and including July 11, 2026, if this Agreement expires at the end of its initial term without earlier termination).
(b) The following provisions of this Agreement shall survive the expiration or termination of this Agreement indefinitely and shall remain in full force and effect: Article 6 (No Obligation to Proceed; No Representations or Warranties), Article 8 (Remedies), Article 10 (Relationship of the Parties), Article 11 (Governing Law and Dispute Resolution), and Article 12 (Miscellaneous).
ARTICLE 10: RELATIONSHIP OF THE PARTIES
Section 10.1 — Independent Parties
The Parties are independent contracting parties. Nothing in this Agreement shall be construed or interpreted as creating, establishing, or implying any partnership, joint venture, agency, employment, franchise, or fiduciary relationship between the Parties. Neither Party is, nor shall either Party hold itself out to be, an agent, partner, employee, or representative of the other Party for any purpose whatsoever. Neither Party shall have any right, power, or authority to bind, obligate, or commit the other Party in any manner whatsoever, including without limitation the power to enter into any contract, incur any liability, or make any representation or warranty on behalf of the other Party.
ARTICLE 11: GOVERNING LAW AND DISPUTE RESOLUTION
Section 11.1 — Governing Law
This Agreement, and all claims, causes of action, and disputes arising out of or relating to this Agreement (whether sounding in contract, tort, or otherwise), shall be governed by and construed in accordance with the internal laws of the State of Iowa, without giving effect to any choice-of-law or conflict-of-law rules, principles, or provisions (whether of the State of Iowa or any other jurisdiction) that would cause the application of the substantive laws of any other jurisdiction.
Section 11.2 — Jurisdiction and Venue
Each Party hereby irrevocably and unconditionally (a) submits to the exclusive personal jurisdiction of the state courts of the State of Iowa sitting in Polk County, Iowa, and the United States District Court for the Southern District of Iowa, for any legal action, suit, or proceeding arising out of or relating to this Agreement, (b) agrees that all claims with respect to any such action, suit, or proceeding shall be heard and determined exclusively in such courts, (c) waives, to the fullest extent permitted by applicable law, 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 (d) waives, to the fullest extent permitted by applicable law, the defense of an inconvenient forum to the maintenance of any such action, suit, or proceeding in any such court. Each Party agrees that a final judgment in any such action, suit, or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by applicable law.
Section 11.3 — Waiver of Jury Trial
EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL ACTION, SUIT, OR PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE CONFIDENTIAL INFORMATION, THE PROPOSED TRANSACTION, OR ANY TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE 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, (B) IT UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (C) IT MAKES THIS WAIVER VOLUNTARILY, AND (D) IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 11.3.
ARTICLE 12: MISCELLANEOUS
Section 12.1 — Entire Agreement
This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior or contemporaneous oral or written agreements, understandings, negotiations, representations, warranties, and discussions between the Parties (or their respective Representatives) relating to the confidentiality of information exchanged in connection with the Purpose. There are no side agreements, understandings, promises, or commitments between the Parties relating to the subject matter of this Agreement that are not expressly set forth or referred to herein.
Section 12.2 — Amendments; Waiver
(a) This Agreement may not be amended, modified, supplemented, or restated except by a written instrument duly executed by an authorized representative of each of the Parties. No oral modification of this Agreement shall be binding upon either Party.
(b) No failure or delay by either Party in exercising any right, power, or remedy under this Agreement, and no course of dealing between the Parties, shall operate as a waiver of any such right, power, or remedy. No single or partial exercise of any right, power, or remedy under this Agreement shall preclude any other or further exercise thereof or the exercise of any other right, power, or remedy. No waiver of any provision of this Agreement shall be effective unless made in writing and signed by the Party granting such waiver. No waiver granted on any one occasion shall constitute a continuing waiver or shall be construed as a waiver of any other provision or a waiver of the right to enforce such provision on any subsequent occasion.
Section 12.3 — Severability
If any provision of this Agreement is held to be invalid, illegal, or unenforceable in any respect by a court of competent jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other provision of this Agreement, and this Agreement shall be construed as if such invalid, illegal, or unenforceable provision had never been contained herein. In the event that any provision is determined to be invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to give effect to the original intent of the Parties as closely as possible in a mutually acceptable manner, and the invalid, illegal, or unenforceable provision shall be modified to the minimum extent necessary to make it valid, legal, and enforceable while preserving, to the greatest extent possible, the economic, legal, and business intent of the Parties. The remaining provisions of this Agreement shall continue in full force and effect.
Section 12.4 — Assignment
(a) Neither Party may assign or transfer this Agreement or any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other Party, which consent may be withheld in such other Party's sole and absolute discretion. Any attempted assignment or transfer without such consent shall be null, void, and of no force or effect.
(b) Notwithstanding the foregoing, either Party may, without the prior written consent of the other Party, assign this Agreement and all of its rights and obligations hereunder to (i) an affiliate of such Party, or (ii) any successor in interest to such Party in connection with a merger, consolidation, reorganization, or sale of all or substantially all of the assets of such Party, provided that in each case the assignee assumes and agrees in writing to be bound by all of the terms and conditions of this Agreement. Any assignment or transfer made in accordance with this Section 12.4(b) shall not relieve the assigning Party of its obligations under this Agreement unless the other Party provides its written consent to such release.
Section 12.5 — Notices
(a) All notices, requests, demands, consents, approvals, waivers, and other communications required or permitted under this Agreement shall be in writing and shall be deemed to have been duly given and effective:
(i) when delivered personally to the addressee;
(ii) when sent by confirmed electronic mail (email) to the addressee at the email address specified below (provided that a copy is simultaneously sent by one of the other methods specified in this Section 12.5);
(iii) one (1) business day after deposit with a nationally recognized overnight courier service (such as Severin Partners LLC, Halcyon Partners LLC, or Tarrant & Co.), with all charges prepaid and with receipt confirmed; or
(iv) three (3) business days after deposit in the United States mail, certified or registered, return receipt requested, postage prepaid;
in each case addressed as follows (or to such other address as a Party may designate by written notice to the other Party in accordance with this Section 12.5):
If to Greenfield:
Marcus J. Linden Founder & Managing Partner Greenfield Agricultural Partners LLC 4100 Grand Prairie Drive, Suite 300 Des Moines, Iowa 50309
with a copy (which shall not constitute notice) to:
Calderwood & Harkness LLP 800 Walnut Street, Suite 2400 Des Moines, Iowa 50309
Attention: Sandra Tung
If to TerraVault:
Dr. Anand Mehta Co-Founder & Chief Executive Officer TerraVault BioSciences Inc. 1720 Innovation Parkway Champaign, Illinois 61820
with a copy (which shall not constitute notice) to:
Whitfield, Carey & Stokes LLP 233 S. Wacker Drive, Suite 5600 Chicago, Illinois 60606
Attention: Jonathan Everett Carey
Section 12.6 — Counterparts
This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which, taken together, shall constitute one and the same instrument. The execution and delivery of this Agreement by facsimile transmission, portable document format (PDF), DocuSign, or other electronic transmission shall be deemed to be, and shall have the same legal force and effect as, execution and delivery of an original signed counterpart.
Section 12.7 — No Third-Party Beneficiaries
This Agreement is entered into solely for the benefit of the Parties hereto and their respective permitted successors and assigns. Nothing in this Agreement, whether express or implied, is intended to or shall confer upon any person or entity other than the Parties and their respective permitted successors and assigns any legal or equitable right, benefit, remedy, or claim of any kind under or by reason of this Agreement.
Section 12.8 — Construction
(a) This Agreement has been negotiated by the Parties and their respective legal counsel, and this Agreement shall not be construed against either Party as the drafter hereof. Each Party acknowledges that it has had the opportunity to review this Agreement with counsel of its choosing and that the terms and conditions of this Agreement reflect a fair and balanced allocation of rights and obligations between the Parties.
(b) The headings and captions of the articles, sections, and subsections of this Agreement are inserted for convenience of reference only and shall not affect the meaning, interpretation, or construction of this Agreement. All references in this Agreement to "Articles," "Sections," and "Subsections" refer to the corresponding articles, sections, and subsections of this Agreement unless otherwise specified. The words "include," "includes," and "including" shall be deemed to be followed by the phrase "without limitation." The terms "hereof," "herein," "hereby," "hereto," and similar terms refer to this Agreement as a whole, and not to any particular provision of this Agreement.
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SIGNATURE PAGE TO MUTUAL NON-DISCLOSURE AGREEMENT
IN WITNESS WHEREOF, the Parties have caused this Mutual Non-Disclosure Agreement to be duly executed as of the Effective Date first written above, by their respective duly authorized representatives.
GREENFIELD AGRICULTURAL PARTNERS LLC
By: ________
Name: Marcus J. Linden
Title: Founder & Managing Partner
Date: July 11, 2022
TERRAVAULT BIOSCIENCES INC.
By: ________
Name: Dr. Anand Mehta
Title: Co-Founder & Chief Executive Officer
Date: July 11, 2022