MUTUAL NON-DISCLOSURE AGREEMENT
Exhibit (d)(2)
THIS MUTUAL NON-DISCLOSURE AGREEMENT (“Agreement”) is made effective as of March 6, 2022 (the “Effective Date”), by and between TURNING POINT THERAPEUTICS, INC., a Delaware corporation (“Turning Point”), and XXXXXXX-XXXXX SQUIBB COMPANY, a Delaware corporation (“Company”), for the purpose of assuring the protection and preservation of the confidential and/or proprietary nature of information to be made available by each party to the other in connection with the parties’ evaluation of a potential business relationship between the parties and/or their Affiliates (the “Authorized Purpose”). The parties hereby agree as follows:
considered a breach of this Agreement by the Receiving Party. The Receiving Party shall immediately notify the Disclosing Party in the event of any loss, unauthorized disclosure or unauthorized use of, or any inability to account for, any Confidential Information of the Disclosing Party.
(a) make, effect, initiate, cause or participate in (i) any acquisition of beneficial ownership of any securities of Turning Point (including derivatives thereof), (ii) any acquisition of any assets of Turning Point, (iii) any tender offer, exchange offer, merger, business combination, recapitalization, restructuring, liquidation, dissolution or extraordinary transaction involving Turning Point or involving any securities or assets of Turning Point (collectively, a transaction specified in clause (a)(i), (a)(ii) and (a)(iii) involving a
majority of Turning Point’s outstanding capital stock or consolidated assets, is referred to as a (“Business Combination”), or (iv) any “solicitation” of “proxies” (as those terms are used in the proxy rules of the Securities and Exchange Commission) or consents with respect to any securities of Turning Point;
(b) form, join or participate in a “group” (as defined in the Securities Exchange Act of 1934, as amended, and the rules promulgated thereunder) with respect to the beneficial ownership of any securities of Turning Point;
(c) act, alone or in concert with others, to seek to control or influence the management, board of directors or policies of Turning Point;
(d) take any action that might require the Company to make a public announcement regarding any of the types of matters set forth in clause “(a)” of this sentence;
(e) agree or offer to take, or encourage or propose (publicly or otherwise) the taking of, any action referred to in clause “(a)”, “(b)”, “(c)” or “(d)” of this sentence;
(f) assist, induce or encourage any other individual, corporation, partnership, entity, group, tribunal or governmental authority (each such party referred to herein as a “Person”) to take any action of the type referred to in clause “(a)”, “(b)”, “(c)”, “(d)” or “(e)” of this sentence;
(g) enter into any discussions, negotiations, arrangement or agreement with any other Person relating to any of the foregoing; or
(h) request or propose (either directly or indirectly) that Turning Point or any of Turning Point’s Representatives amend, waive or consider the amendment or waiver of any provision set forth in this Section 8 (including this sub-paragraph);
provided, however, that the Standstill Period shall terminate (x) upon Turning Point’s entry into a definitive agreement providing for a Business Combination or (y) if any person commences a tender or exchange offer which, if consummated, would result in such person’s acquisition of beneficial ownership of more than 50% of the outstanding voting securities of Turning Point, and in connection therewith, Turning Point files with the Securities and Exchange Commission a Schedule 14D-9 with respect to such offer that recommends that Turning Point’s stockholders accept such offer.
Notwithstanding any other provision of this Agreement to the contrary, nothing herein will prevent Company or its Representatives from communicating with Turning Point’s Chief Executive Officer or Chairman of Turning Point’s Board of Directors (or any duly constituted committee thereof) with respect to a Business Combination or requesting Turning Point’s Chief Executive Officer or Chairman of Turning Point’s Board of Directors (or any duly constituted committee thereof) for a waiver of the provisions of this Section 8; provided, that such communication or request is made confidentially and would not reasonably be expected to require public disclosure by Turning Point with respect thereto; and nothing in this Section 8 shall be construed to prohibit passive investments made in the ordinary course of business in connection with retirement plans, 401(k) plans, mutual funds, pension plans, or similar arrangements, in each case, only if not specifically targeted to an investment in Turning Point and not resulting in any filing obligation under Section 13 of the Exchange Act. The expiration of the Standstill Period will not terminate or otherwise affect any of the other provisions of this Agreement.
12. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to its conflicts of laws principles.
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TURNING POINT THERAPEUTICS, INC. | | | XXXXXXX-XXXXX SQUIBB COMPANY |
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By: /s/ Xxx Xxxxx | | | By: /s/ Xxxxx Xxxxxxx |
Name: Xxx Xxxxx | | | Name: Xxxxx Xxxxxxx |
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Title: Senior Vice President & Chief Compliance Officer | | | Title: VP, Corporate Development |
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Address: | | | Address: |
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10628 Science Center Drive, Suite 200 San Diego, CA 92121 | | | Route 206 & Province Line Road Princeton, NJ 08543 |
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Attention: General Counsel | | | Attention: |