Confidentiality Agreement COUGAR BIOTECHNOLOGY, INC.
Exhibit
(e)(3)
November 14,
2008
Xxxxxxx & Xxxxxxx Pharmaceutical Services, LLC
Xxx Xxxxxxx & Xxxxxxx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxx, Vice President, Business Development
Ladies and Gentlemen:
In connection with our mutual consideration of a possible
acquisition, business combination or other strategic
collaboration (any such transaction a “Possible
Transaction”) between you or an Affiliate (as defined
herein) and Cougar Biotechnology, Inc.
and/or its
subsidiaries, Affiliates or divisions (collectively, with such
subsidiaries, Affiliates and divisions, the
“Company”), the Company is prepared to make
available to you and your Representatives (as hereinafter
defined) certain information concerning the business, financial
condition, operations, assets and liabilities of the Company and
you are prepared to make available to the Company certain
information concerning you and your Affiliates and their
businesses. As a condition to such information being furnished
by each party hereto (a “Party” and the
“Parties”) to the other Party and its
Representatives, the Parties agree that they will, and will
cause their Representatives to, treat the Evaluation Material
(as hereinafter defined) in accordance with the provisions of
this letter agreement and take or abstain from taking certain
other actions as set forth herein. The term
“Representatives” shall include the members,
directors, shareholders, officers, employees, agents, Affiliates
(as such term is defined under the Securities Exchange Act of
1934, as amended (the “1934 Act”)),
partners and advisors of a Party and those of its subsidiaries,
Affiliates
and/or
divisions (including, without limitation, attorneys,
accountants, consultants, bankers, financial advisors and,
subject to the limitations herein, prospective sources of
financing for a Possible Transaction). Notwithstanding any other
provision hereof, each Party reserves the right not to make
available hereunder any information, the provision of which is
determined by it, in its sole discretion, to be inadvisable or
inappropriate.
1. Evaluation Material. The term
“Evaluation Material” shall mean, with respect
to either Party, all information relating, directly or
indirectly, to that Party or the business, products, markets,
condition (financial or other), operations, assets, liabilities,
results of operations, cash flows or prospects of that Party or
any Affiliate (whether prepared by that Party, its advisors or
otherwise) which is delivered, disclosed or furnished by or on
behalf of that Party (the “Disclosing Party”)
to the other Party (the “Receiving Party”) or
its Representatives, on or after the date hereof, regardless of
the manner in which it is delivered, disclosed or furnished, or
which the Receiving Party or its Representatives otherwise learn
or obtain, through observation or through analysis of such
information, data or knowledge, and shall also be deemed to
include
November 14,
2008
all notes, analyses, compilations, studies, forecasts,
interpretations or other documents prepared by the Receiving
Party or its Representatives that contain, reflect or are based
upon, in whole or in part, the information delivered, disclosed
or furnished to the Receiving Party or its Representatives
pursuant hereto. Notwithstanding any other provision hereof, the
term Evaluation Material shall not include information which
(i) is or becomes generally available to the public other
than as a result of a disclosure by the Receiving Party or its
Representatives in breach of the obligations hereunder,
(ii) was within the Receiving Party’s possession prior
to it being furnished to the Receiving Party by or on behalf of
the Disclosing Party pursuant hereto, provided that the
source of such information was 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 or any other party with respect to such
information, (iii) was independently discovered or
developed by or on behalf of the Receiving Party or its
Representatives without the use of Disclosing Party’s
Evaluation Material (as evidenced by the Receiving Party’s
written records) or (iv) becomes available to the Receiving
Party on a non-confidential basis from a source other than the
Disclosing Party or any of its 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
or any other party with respect to such information. For the
duration of this letter agreement and a period of three
(3) years after its expiration or termination, each Party
shall treat all Evaluation Material received from the other
Party in connection with the Purpose (as defined below) as
confidential and not disclose such Evaluation Material to any
other person, company or firm other than as expressly permitted
hereunder and would use such Evaluation Material only for the
Purpose (as defined below).
2. Use and Disclosure of Evaluation
Material. Each Party recognizes and acknowledges
the competitive value and confidential nature of the Disclosing
Party’s Evaluation Material and that damage could result to
the Disclosing Party if any information contained therein is
disclosed to a third party. Each Party hereby agrees that it and
its Representatives shall use the Evaluation Material solely for
the purpose of evaluating a Possible Transaction (the
“Purpose”) and for no other purpose, that the
Evaluation Material will be kept confidential and that it and
its Representatives will not disclose any of the Evaluation
Material in any manner whatsoever; provided,
however, that (i) the Receiving Party may make any
disclosure of the Evaluation Material to which the Disclosing
Party gives its prior written consent and (ii) any of the
Evaluation Material may be disclosed to the Receiving
Party’s Representatives who need to know such information
for the Purpose and who are bound by confidentiality and non-use
obligations to the Receiving Party with respect to the
Evaluation Material consistent with the confidentiality and
non-use obligations contained herein; provided
further that you agree you will only disclose the
Company’s Evaluation Material to a prospective source of
financing with the prior written consent of the Company. Each
Party agrees to undertake precautions to safeguard and protect
the confidentiality of the Evaluation Material comparable to
those precautions and safeguards taken by it to protect its own
confidential information and, in any event to take no less than
reasonable measures in such respect. Each Party agrees to accept
responsibility for any breach of this letter agreement by it or
any of its Representatives.
In addition, each Party agrees that, without the prior written
consent of the other Party or unless otherwise permitted
hereunder, it and its Representatives will not disclose to any
other person the fact that it or its Representatives have
received Evaluation Material or that
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November 14,
2008
Evaluation Material has been made available to it or its
Representatives, that investigations, discussions or
negotiations are taking place concerning a Possible Transaction
or any of the terms, conditions or other facts with respect to
any Possible Transaction, including the status thereof and the
identity of the parties thereto (collectively, the
“Discussion Information”). The term
“Person” as used in this letter agreement shall be
broadly interpreted to include the media.
In the event that the Receiving Party or any of its
Representatives are requested or required (by oral questions,
interrogatories, requests for information or documents in legal
proceedings, subpoena, civil investigative demand or other
similar legal process or as otherwise required by law) to
disclose any of the Evaluation Material or Discussion
Information, the Receiving Party shall provide the Disclosing
Party with prompt written notice of any such request or
requirement and the nature, scope and contents of such
disclosure so that the Receiving Party may in its sole
discretion seek a protective order or other appropriate remedy
and/or waive
compliance with the provisions of this letter agreement and, at
the Disclosing Party’s expense, cooperate with the
Disclosing Party and use reasonable efforts to obtain assurance
that confidential treatment will be accorded to the Evaluation
Material or Discussion Information to be disclosed. If, in the
absence of a protective order or other remedy or the receipt of
a waiver by the Disclosing Party, the Receiving Party or any of
its Representatives are nonetheless, in the opinion of legal
counsel, legally compelled to disclose Evaluation Material or
Discussion Information, the Receiving Party or its
Representatives may, without liability hereunder, disclose only
that portion of the Evaluation Material or Discussion
Information which such counsel advises you is legally required
to be disclosed and the Receiving Party shall inform the
Disclosing Party of the nature, scope and contents of that
disclosure.
3. Return and Destruction of Evaluation
Material. In the event that the Receiving Party
decides not to proceed with a Possible Transaction, it will
promptly inform the Disclosing Party of that decision. In that
case, or at any time upon the request of the Disclosing Party in
its sole discretion and for any reason, the Receiving Party will
promptly deliver, at its expense, to the Disclosing Party or, in
its discretion, destroy all Evaluation Material (and any copies
thereof) furnished to the Receiving Party or its Representatives
by or on behalf of the Disclosing Party pursuant hereto and
provide written certification as to such destruction. In the
event of such a decision or request, all other Evaluation
Material prepared by the Receiving Party or on its behalf shall
be returned or destroyed; provided that Receiving
Party’s legal counsel may retain a copy thereof for
archival purposes solely for the purpose of monitoring and
ensuring compliance with all of the legal obligations hereunder
(provided, however, such archival copy shall be destroyed
three (3) years after the date of this letter agreement
upon the written request of the Disclosing Party). Upon the
Disclosing Party’s request, the Receiving Party shall
provide the Disclosing Party with prompt written confirmation of
its compliance with this paragraph. Notwithstanding the return
or destruction of the Evaluation Material, the Receiving Party
and its Representatives shall continue to be bound by their
obligations of confidentiality and other obligations and
agreements hereunder.
4. No Representations or Warranties. The
Receiving Party understands, acknowledges and agrees that
neither the Disclosing Party nor any of its Representatives
makes any representation or warranty, express or implied, as to
the accuracy or completeness of the Evaluation Material. The
Receiving Party agrees that neither the Disclosing Party nor any
of its Representatives shall have any liability to the Receiving
Party or to any of its Representatives
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November 14,
2008
relating to or resulting from the use of the Evaluation Material
or any errors therein or omissions therefrom. Only those
representations or warranties which are made in a final
definitive agreement regarding any transactions contemplated
hereby, when, as and if executed and delivered, and subject to
such limitations and restrictions as may be specified therein,
will have any legal effect.
5. Point of Contact: No
Solicitation. Except as otherwise instructed by
the Chief Executive Officer of the Company, you and your
Representatives (i) shall direct all inquiries and any
requests for information concerning the Company as they relate
to a Possible Transaction to the Chief Executive Officer or
Xxxxxxx Xxxxx & Co. and (ii) shall not contact
any Representative of the Company other than the Chief Executive
Officer or Xxxxxxx Xxxxx & Co. In consideration
of the Company Evaluation Material being furnished, you hereby
agree that for a period of eighteen (18) months after the
date of this letter agreement neither you nor any of your
Representatives (nor any person acting on behalf of or in
concert with you or any of your Representatives) will, without
the prior written consent of the Company, directly or
indirectly, solicit to employ any of the officers or employees
of the Company who become known to you or your Representatives
through consideration of the Possible Transaction; provided,
however, that the employment restrictions of this paragraph
shall not apply to (i) any general advertisement, or any
search firm engagement which, in any such case, is not directed
or focused on personnel employed by the Company or (ii) any
officers or employees of the Company who make contact with you
on their own initiative regarding employment.
In consideration of your Evaluation Material being furnished to
the Company, the Company hereby agrees that for a period of
eighteen (18) months after the date of this letter
agreement neither the Company nor any of its Representatives
(nor any person acting on behalf of or in concert with the
Company or any of its Representatives) will, without your prior
written consent, directly or indirectly, solicit to employ any
of your or your Affiliates’ officers or employees who
become known to the Company or its Representatives through
consideration of the Possible Transaction; provided, however,
that the employment restrictions of this paragraph shall not
apply to (i) any general advertisement, or any search firm
engagement which, in any such case, is not directed or focused
on personnel employed by you or your Affiliates or (ii) any
of your or your Affiliates’ officers or employees who make
contact with the Company or its Representatives on their own
initiative regarding employment.
6. Material Non-Public Information. You
acknowledge and agree that you are aware (and that your
Representatives are aware or, upon receipt of any of the
Company’s Evaluation Information or Discussion Information,
will be advised by you) that (i) the Company’s
Evaluation Material being furnished to you or your
Representatives contains material, non-public information
regarding the Company and (ii) the United States securities
laws prohibit any persons who have material, nonpublic
information concerning the matters which are the subject of this
letter agreement, including the Discussion Information, from
purchasing or selling securities of a company which may be a
party to a transaction of the type contemplated by this letter
agreement or from communicating such information to any person
under circumstances in which it is reasonably foreseeable that
such person is likely to purchase or sell such securities in
reliance upon such information.
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November 14,
2008
7. Standstill. As of the date hereof,
neither you nor any of your Representatives, or any person with
whom any of the foregoing may be deemed to be acting in concert
with respect to the Company or its securities, owns any
securities of the Company other than as permitted in
clause (i) of the last paragraph of this Section 7.
You agree that, for a period of eighteen (18) months from
the date of this letter agreement (the “Standstill
Period”), unless specifically invited in writing by the
Company, neither you nor any of your Representatives will in any
manner, directly or indirectly:
(a) effect or seek, offer or propose (whether publicly or
otherwise) to effect, or announce any intention to effect or
cause or participate in or take any action in furtherance of,
(i) any acquisition of any of the Company’s securities
(or beneficial ownership thereof), or rights or options to
acquire any of the Company’s securities (or beneficial
ownership thereof), or any assets, indebtedness or businesses of
the Company that are material to the operations or financial
condition of the Company, taken as a whole, (ii) any tender
or exchange offer for any of the Company’s securities or
any merger involving the Company or any of the subsidiaries,
Affiliates or assets of the Company that are material to the
operations or financial condition of the Company, its
subsidiaries and Affiliates, taken as a whole, (iii) any
recapitalization, restructuring, liquidation, dissolution or
other extraordinary transaction with respect to the Company, or
(iv) any “solicitation” of “proxies”
(as such terms are used in the proxy rules of the Securities and
Exchange Commission) or consents to vote any voting securities
of the Company;
(b) form, join or in any way participate in a Group (as
defined below) with respect to the Company or otherwise act in
concert with any person in respect of any such securities;
(c) otherwise act, alone or in concert with others, to seek
representation on or to control or influence the management or
Board of Directors of the Company or to obtain representation on
the Board of Directors of the Company; or
(d) enter into any discussions or arrangements with any
third party with respect to any of matters set forth in
(a) through (c) above.
You also agree during the Standstill Period not to request that
the Company or any of its Representatives, directly or
indirectly, amend or waive any provision of this paragraph
(including this sentence); provided that in the event
that any of your Representatives does so request such waiver or
amendment from the Company or its Representatives, the Company
shall provide you with written notice thereof and you must
withdraw such request within five (5) business days from
the receipt of such notice. You further agree that, if at any
time during the Standstill Period, you or any of your Affiliates
or Representatives are approached by any third party concerning
your or their participation in a transaction involving any
assets, indebtedness or business of, or securities issued by,
the Company or any of its Affiliates, you will promptly inform
the Company of the nature of such transaction and the parties
involved.
In addition, you agree you will not, without the Company’s
prior written consent, enter into an exclusivity arrangement
with a banker or prospective source of financing pursuant to
which such banker or prospective source of financing agrees not
to provide or arrange or commit to finance or arrange a
financing for a third party in connection with a possible
merger,
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November 14,
2008
business combination or similar transaction between the Company
and such third party or any of its Affiliates.
Notwithstanding the foregoing, in the event that (i) any
Person or Group makes a Business Combination Proposal (as
defined below) and such Business Combination Proposal becomes
public, (ii) any Person or Group acquires beneficial
ownership of more than thirty-five percent (35%) of the
Company’s voting securities, or (iii) the Company
enters into a definitive agreement or a publicly disclosed
agreement in principle with respect to any matters referred to
in clause (i) or (ii) above, then the provisions of
this Section 7 shall be suspended and shall not be
applicable to you and your Affiliates.
In addition, notwithstanding the foregoing; (i) neither you
nor any of your Affiliates shall be prevented or precluded from
making open market purchases of and owning Company securities
through any 401(k) or similar bona fide benefit plan
maintained for the benefit of your and your Affiliates’
employees, provided that neither you nor any of your Affiliates
shall in any way request or direct that the trustee or other
administrator of such plan acquire any of the Company’s
securities; (ii) the Chairman and the Chief Executive
Officer of Xxxxxxx & Xxxxxxx may communicate with the
Chairman and Chief Executive Officer of the Company, provided
that such communication is made confidentially, does not require
public disclosure by you, the Company, or any of our respective
Affiliates and does not require the issuance of a public
response by the Company or any of its Affiliates; and
(iii) for purpose of clarity, nothing in this
Section 7 shall in anyway prohibit or preclude you or your
Affiliates from engaging in any actions that might otherwise be
prohibited during Standstill Period to the extent (and solely to
the extent) it is in connection with a negotiated transaction
with the Company for license, distribution or other
commercialization rights for any of the Company’s products
or technologies.
8. Internal Development Activity. The
Company acknowledges that (i) you or your Affiliates
presently have internal development programs in the same field
to which the Confidential Information relates,
and/or
(ii) without recourse to and independent of the
Confidential Information disclosed hereunder you or your
Affiliates may undertake such development programs,
and/or
(iii) you may receive information from third parties in the
same field to which the Confidential Information relates, and
may develop and commercialize products
and/or
services relating to such subject matter independently or in
cooperation with such third parties. The Company further
acknowledges that your obligations are not inconsistent with
your continued ability to pursue any such activities as
described above. You acknowledge, however, that nothing in this
Section 7 shall alter your obligations of confidentiality
and non-use under this Agreement.
9. No Agreement. The Parties understand
and agree that no contract or agreement providing for any
Possible Transaction shall be deemed to exist between you and
the Company unless and until a final definitive agreement has
been executed and delivered, and the Parties hereby waive, in
advance, any claims (including, without limitation, breach of
contract) in connection with any Possible Transaction unless and
until you and the Company shall have entered into a final
definitive agreement. The Parties also agree that unless and
until a final definitive agreement regarding a Possible
Transaction has been executed and delivered, neither the Company
nor you will be under any legal obligation of any kind
whatsoever with respect to
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November 14,
2008
such a Possible Transaction by virtue of this letter agreement
except for the matters specifically agreed to herein. The
Parties further acknowledge and agree that the each Party
reserves the right, in its sole discretion, to reject any and
all proposals made by the other Party or any of its
Representatives with regard to a Possible Transaction, to
determine not to engage in discussions or negotiations and to
terminate discussions and negotiations with the other Party at
any time, and to conduct, directly or through any of its
Representatives, any process for any transaction involving the
other Party or any of its subsidiaries, if and as they in their
sole discretion shall determine (including, without limitation,
negotiating with any other interested parties and entering into
a definitive agreement without prior notice to the other Party
or any other person).
10. No Waiver of Rights. It is understood
and agreed that no failure or delay by a Party in exercising any
right, power or privilege hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise thereof
preclude any other or further exercise thereof or the exercise
of any other right, power or privilege hereunder.
11. Term. This letter agreement shall
have a term of one year, provided that the confidentiality and
non-use provisions contained in Section 2 shall survive for
a period of three (3) years after the termination or
expiration of this letter agreement, together with such other
provisions necessary to give meaning to the survival of such
provisions.
12. Remedies. It is understood and agreed
that money damages may not be a sufficient remedy for a breach
of this letter agreement by the Receiving Party or any of its
Representatives and that the Disclosing Party shall be entitled
to seek equitable relief, including, without limitation,
injunction and specific performance, as a remedy for any such
breach. Such remedies shall not be deemed to be the exclusive
remedies for a breach by the Receiving Party of this letter
agreement but shall be in addition to all other remedies
available at law or equity to the Disclosing Party.
13. Governing Law; Waiver of Jury
Trial. This letter agreement is for the benefit
of the Parties (and their subsidiaries and Affiliates) and their
Representatives, and shall be governed by and construed in
accordance with the laws of the State of New York, without
regard to the conflict of law provisions thereof. Each Party
hereby waives, to the fullest extent permitted by applicable
law, any right it may have to a trial by jury in respect to any
claim, action, suit or proceeding directly or indirectly arising
out of, under or in connection with this letter agreement or any
transaction contemplated hereby. Each Party (A) certifies
that no Representative of the other Party has represented,
expressly or otherwise, that such other Party would not, in the
event of any claim, action, suit or proceeding, seek to enforce
the foregoing waiver and (B) acknowledges that it and the
other Party have been induced to enter into this letter
agreement by, among other things, the mutual waivers and
certifications in this Section 12.
13. Entire Agreement. This letter
agreement contains the entire agreement between you and the
Company regarding its subject matter and supersedes all prior
agreements, understandings, arrangements and discussions between
you and the Company regarding such subject matter.
14. No Modification. No provision in this
letter agreement can be waived, modified or amended except by
written consent of you and the Company, which consent shall
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November 14,
2008
specifically refer to the provision to be waived, modified or
amended and shall explicitly make such waiver, modification or
amendment.
16. Counterparts. This letter agreement
may be signed by facsimile and in one or more counterparts, each
of which shall be deemed an original but all of which shall be
deemed to constitute a single instrument.
17. Severability. If any provision of
this letter agreement is found to violate any statute,
regulation, rule, order or decree of any governmental authority,
court, agency or exchange, such invalidity shall not be deemed
to affect any other provision hereof or the validity of the
remainder of this letter agreement, and such invalid provision
shall be deemed deleted herefrom to the minimum extent necessary
to cure such violation.
18. Successors. This letter agreement
shall inure to the benefit of, and be enforceable by, the
Company and its successors and assigns.
19. Third Party Beneficiaries. You agree
and acknowledge that this letter agreement is being entered into
by and on behalf of the Company and its Affiliates, subsidiaries
and divisions and that they shall be third party beneficiaries
hereof, having all rights to enforce this letter agreement. You
further agree that, except for such parties, nothing herein
expressed or implied is intended to confer upon or give any
rights or remedies to any other person under or by reason of
this letter agreement.
20. No License. Nothing herein shall be
deemed to grant a license, whether directly or by implication,
estoppel or otherwise, to any Evaluation Material disclosed
pursuant to this letter agreement.
21. Certain Defined Terms. The following
terms, as used in this letter agreement, have the following
meanings:
“Business Combination Proposal” means (i) a
tender or exchange offer or other bona fide offer to acquire
directly or indirectly any Company securities under
circumstances such that, immediately after such acquisition, any
Person or Group would beneficially own securities with an
aggregate voting power representing more than thirty-five (35%)
of the total voting power of the Company or (ii) a proposal
or offer for a merger, amalgamation or other business
combination directly or indirectly involving the Company that
would result in the acquisition of more than thirty-five (35%)
of the total voting power of the Company, or a proposal or offer
to acquire directly or indirectly all or substantially all of
the assets of the Company.
“Group” means two or more Persons acting, formally or
informally, as a partnership, limited partnership, syndicate or
other group or pursuant to any agreement, arrangement or
understanding, in any event, for purposes of acquiring, holding,
voting or disposing of securities.
“Person” means any individual, corporation, limited
liability company, partnership, joint venture, association,
joint stock company, trust, unincorporated organization,
government or any agencies or political subdivision thereof or
any other entity.
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November 14,
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“Affiliate” means with respect to any Person, a Person
directly or indirectly controlling or controlled by or under
direct or indirect common control with such specified Person.
For purposes of this definition, “control”
means the possession, directly or indirectly, of the power to
direct or cause the direction of the management of policies of
such Person, whether through the ownership of voting securities,
by agreement or otherwise.
[SIGNATURE
PAGE FOLLOWS]
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2008
Please confirm your agreement with the foregoing by having a
duly authorized officer of your organization sign and return one
copy of this letter to the undersigned, whereupon this letter
agreement shall become a binding agreement among you and the
Company.
Very truly yours,
| By: |
/s/ Xxxx
X. Xxxxxxxx
|
Name: Xxxx X. Xxxxxxxx
| Title: Chief Executive Officer |
CONFIRMED AND AGREED
as of the date written above:
XXXXXXX & XXXXXXX PHARMACEUTICAL SERVICES, LLC
| By: |
/s/ Xxxxxxx
Xxxxxxxx
|
Name: Xxxxxxx Xxxxxxxx
Title: Vice President, Business Development Group,
Pharmaceuticals
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