Non-Disclosure and Confidentiality Agreement

Non-Disclosure and Confidentiality Agreement

NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT dated as of this day of ____________________, between AURORA BIOPHARMA INC., a corporation located at Harvard Square, One Mifflin Place, Ste. 400, Cambridge, MA 02138 (the “Disclosing Party”) and ____________________, a corporation located at ____________________ (the “Receiving Party”).

The “Disclosing Party” and the “Receiving Party” are sometimes referred to herein as a “Party” or collectively as “Parties.”

RECITALS

WHEREAS, the Disclosing Party and Receiving Party wish to explore a business or employment relationship in which the Receiving Party may disclose Confidential Information defined below to Disclosing Party (the “Disclosure”);

WHEREAS, is connection with exploring the Disclosure, the Disclosing Party will disclose Confidential Information (as hereinafter defined) to the Receiving Party; and

WHEREAS, the Disclosing Party desires to protect the confidentiality of such Confidential Information in accordance with the terms of this Agreement.

AGREEMENT

NOW, THEREFORE, in consideration of the mutual covenants contained in this Agreement, the Parties agree as follows:

Confidential Information Defined. The Parties acknowledge that, in the course of their consideration of and any concurrent or subsequent discussions between them and their respective Representatives (as hereinafter defined) relating to the Disclosure, the Receiving Party may receive orally or in writing (including electronically), certain non-public and Confidential Information from or about the Disclosing Party or its Affiliates, including but not limited to (i) the identity of customers, suppliers, subcontractors and others with whom the Disclosing Party does business; (ii) marketing methods and strategies; (iii) contract terms, pricing, margin, cost information and other information regarding the relationship between Disclosing Party and the persons and entities with which Disclosing Party has contracted; (iv) the Disclosing Party’s present and planned services, products, specifications, analyses, software, technology, developments, improvements and methods of operation; (v) results of operations, financial condition, projected financial performance, sales and profit performance and financial requirements; (vi) the identity of and compensation paid to employees, contractors, consultants and agents; (vii) business plans, models or strategies and the information contained therein; (viii) sources, leads, or methods of obtaining new business; (ix) designs, inventions, patents, patents pending, licenses and sublicenses; (x) data, know-how, formulae, processes, discoveries, inventions and ideas, whether or not patentable, copyrightable or subject to protection as a trademark or trade name; (xi) acquisitions, divestitures, alliances and other business relationships; and (xii) all other trade secret or confidential information of, about or concerning the business of the Disclosing Party, whether or not any of such information, data or documents qualify as a “trade secret” under applicable federal or State law. All such Confidential Information thus supplied by the Disclosing Party to the Receiving Party or its managers, officers, directors, agents, attorneys, employees and representatives (collectively, “Representatives”) is hereinafter called “Confidential Information.” The term “Confidential Information” also includes (a) the fact that the Confidential Information has been made available to or is being inspected or evaluated by the Receiving Party, (b) the fact that discussions or negotiations are taking place concerning the Disclosure, (c) any of the terms, conditions or other facts with respect to the Disclosure, including its status, and (d) any notes, compilations, studies or other material or documents prepared by the Receiving Party or its Representatives, which contain, reflect, or are based on, in whole or in part, Confidential Information. Any Confidential Information supplied by the Disclosing Party to the Receiving Party to the execution of this Agreement will be considered in the same manner and be subject to the same treatment as the Confidential Information made available after the execution of the Agreement.

Exclusions from Definition. The term “Confidential Information” does not include any data or information that (a) is already known to the Receiving Party at the time it is disclosed to the Receiving Party, or (b) before being divulged by the Receiving Party (i) has become generally known to the public through no wrongful act of the Receiving Party; (ii) has been rightfully received by the Receiving Party from a third Party without restriction on disclosure and without, to the knowledge of the Receiving Party after inquiry, a breach of an obligation of confidentiality running directly or indirectly to the Disclosing Party; (iii) has been approved for release by a written authorization by the Disclosing Party; (iv) has been disclosed pursuant to a requirement of a governmental agency or of law without similar restrictions or to the protection against public disclosure, or is required to be disclosed by operation of law; (v) is independently developed by the Receiving Party without use, directly or indirectly, of the Confidential Information received from the Disclosing Party; or (vi) is furnished to a third Party by the Disclosing Party hereunder without restrictions on the third Party’s right to disclose the Confidential Information. Confidential Information must be clearly marked with "Confidential" or similar wording, or any visual or oral material must be accompanied within 30 days with written notification.

Nondisclosure Obligation. The Receiving Party will keep such Confidential Information, including any portion of the Confidential Information which has been incorporated into analyses, compilations, studies, reports or other documents prepared by the Receiving Party or its Representatives, confidential and will not disclose such Confidential Information, in whole or in part, to any person other than its Representatives who need to know such Confidential Information in connection with the Receiving Party’s evaluation of the Disclosure (it being agreed and understood that such Representatives will be informed by the Receiving Party of the confidential nature of the Confidential Information and will be required by the Receiving Party to agree to treat the Confidential Information confidentially), except with the prior written consent of the Disclosing Party hereto or as otherwise permitted hereunder. The Confidential Information will be used by the Receiving Party solely in connection with its evaluation of the Disclosure and will not be used for the Receiving Party’s own benefit or for any other purpose.

Standard of Protection. For the purpose of complying with the obligations set forth herein, the Receiving Party will use reasonable efforts to keep such Confidential Information confidential, which shall in no event be less than the efforts that the Receiving Party employs for the protection of corresponding sensitive Confidential Information of its own, and the Receiving Party will not be liable for any inadvertent disclosure of Confidential Information provided that (a) it has used substantially the same degree of care to avoid disclosing such Confidential Information as it uses for its own Confidential Information of like importance, and (b) upon discovery of any inadvertent disclosure it will use reasonable efforts to prevent further disclosure of such Confidential Information.

Compliance with Legal Process. If the Receiving Party is legally requested or required (by oral questions, interrogatories, requests for Confidential Information or documents, subpoena, civil investigative demand or similar process or, in the opinion of counsel for the Receiving Party, by federal or state securities or other statues, regulations or laws) to disclose any Confidential Information, such Party will promptly notify the Disclosing Party of such request or requirement prior to disclosure so that the Disclosing Party may seek an appropriate protective order and/or waive compliance with the terms of this Agreement.

Ownership; Return of Confidential Information. All Confidential Information (including tangible copies and computerized, electronic or other versions thereof) will remain the property of the Disclosing Party. Within ten (10) days following the receipt of a written request referencing this Agreement and this paragraph from the Disclosing Party, the Receiving Party will deliver to the Disclosing Party all materials (including tangible copies and computerized, electronic or other versions thereof) containing or embodying the Confidential Information received from the Disclosing Party, including any analyses, compilations, studies or other reports or documents which reflect the Confidential Information, together with a certificate executed by the Receiving Party certifying that all such materials in the Receiving Party’s possession have been delivered to the Disclosing Party.

No Representations. The Parties each acknowledge that the Disclosing Party is not making any representations or warranties regarding any of the Confidential Information supplied by the Disclosing Party or the accuracy or completeness of such Confidential Information.

Term. This Agreement shall commence on the date hereof and will end at such time as the Confidential Information furnished to the Receiving Party by the Disclosing Party ceases to be Confidential Information, or greater of five years.

Remedies for Breach. The Receiving Party acknowledges that a breach or threatened breach of this Agreement would result in irreparable injury to the Disclosing Party for which money damages would not be a sufficient remedy and agrees that the Disclosing Party will be entitled to seek immediate injunctive or other equitable relief to remedy or forestall any such breach or threatened beach. Such remedy will not be deemed to be the exclusive remedy for any breach of this Agreement, but will be in addition to all other rights and remedies available at law or in equity.

No Representations or Further Obligations. Neither this Agreement nor the disclosure or receipt of Confidential Information will constitute or imply any promise or intention to make any purchase of services by either Party or any commitment by either Party with respect to the present or future marketing of any service. It is understood that this Agreement does not obligate either Party to enter into any further agreements or to proceed with any possible relationship or other Disclosure.

No Waiver. No failure or delay by either Party in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder.

Amendment. This Agreement may not be modified, supplemented or amended orally, but only by a writing signed by both Parties hereto.

Governing Law. This Agreement will be governed by and construed and enforced in accordance with the laws of the State of Florida, without regard to its choice of law provisions.

Attorneys’ Fees. The prevailing Party in any litigation or other proceeding brought to enforce or interpret the terms of this Agreement will be entitled to its court costs and reasonable attorneys’ and paralegal fees and expenses.

Severability. If any one or more provisions of this Agreement are determined to be invalid, illegal or unenforceable in any respect, the remaining provisions of this Agreement will remain in effect and will not be affected by such invalidity, illegality or unenforceability.

Miscellaneous. This Agreement: (a) inures to the benefit of and is binding upon each Party and its successors, heirs and permitted assigns; (b) may not be assigned or the obligations of the Parties delegated without the written consent of the Disclosing Party; (c) constitutes the entire agreement of the Parties with respect to its subject matter and supersedes any prior agreement or understanding; and (d) may be executed in counterparts.

Affiliate Defined. As used herein, “Affiliate” means a person or entity which controls, is controlled by, or is under common control with a Party.

IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date first above written.

DISCLOSING PARTY:

AURORA BIOPHARMA, INC.

By:__________________________________

Name: Robert Brooks, JD

Title: CEO



RECEIVING PARTY:

By:__________________________________

Name:

Title: