Exhibit (d)(5)
Confidentiality Agreement
This Confidentiality Agreement (the “Agreement”) is between Lumos Pharma, Inc., a Delaware corporation with an office located at 4200 Marathon Blvd., Suite 200, Austin, TX 78756, (“Lumos”) and Double Point Ventures, LLC, a Delaware limited liability company with an office located at One Pickwick Plaza, 2nd Floor, Greenwich, CT 06830 (“Double Point Ventures”) (each, a “Party” and, collectively, the “Parties”).
1. In connection with the evaluation of possible financing opportunities (the “Purpose”), either party (“Disclosing Party”) may disclose Confidential Information (as defined below) to the other party (“Recipient”). Recipient shall use the Confidential Information solely for the Purpose and, subject to Section 3, shall not disclose such Confidential Information other than to its affiliates and its or their employees, agents, independent contractors, subcontractors, attorneys, and accountants (collectively, “Representatives”) who: (a) need access to such Confidential Information for the Purpose; (b) are informed of its confidential nature; and (c) are bound by written confidentiality obligations no less protective of the Confidential Information than the terms contained herein. Recipient shall safeguard the Confidential Information from unauthorized use, access, or disclosure. Recipient will be responsible for any breach of this Agreement caused by its Representatives. In the event Recipient discovers any misuse or misappropriation of Disclosing Party’s Confidential Information, Recipient shall: (a) notify Disclosing Party within three (3) days of discovering such misuse or misappropriation, and (b) cooperate with Disclosing Party to limit the adverse effects of such misuse or misappropriation.
2. “Confidential Information” means all non-public proprietary or confidential information of Disclosing Party in oral, visual, written, electronic, or other tangible or intangible form, including any notes or summaries that contain such information; provided, however, that Confidential Information does not include any information that: (a) is public at the time of disclosure or becomes available to the public other than as a result of Recipient’s or its Representatives’ breach of this Agreement; (b) is obtained by Recipient or its Representatives on a non-confidential basis from a third-party that was not legally or contractually restricted from disclosing such information; (c) Recipient establishes by documentary evidence, was in Recipient’s or its Representatives’ possession prior to Disclosing Party’s disclosure hereunder; or (d) Recipient establishes by documentary evidence, was or is independently developed by Recipient or its Representatives without using any Confidential Information.
3. If Recipient or any of its Representatives is required by applicable law or a valid legal order to disclose any Confidential Information, Recipient shall notify Disclosing Party of such requirements. To the extent legally allowed, Recipient shall assist Disclosing Party with obtaining a protective order or other remedy to prevent or mitigate the compelled disclosure, at Disclosing Party’s cost.
4. On Disclosing Party’s request, Recipient shall, at Disclosing Party’s discretion, promptly return to Disclosing Party or destroy all Confidential Information in its and its Representatives’ possession; provided, however, that Recipient may retain copies of Confidential Information to the extent required by law, or that are stored on Recipient’s IT backup and disaster recovery systems until their ordinary deletion. However, Recipient shall continue to be bound by the terms and conditions of this Agreement with respect to such retained Confidential Information.
5. Disclosing Party makes no representation or warranty, expressed or implied, as to the accuracy or completeness of the Confidential Information, and will have no liability to Recipient or any other person relating to Recipient’s use of any of the Confidential Information or any errors therein or omissions therefrom.
6. Double Point Ventures hereby acknowledges that it is aware, and that it will advise its Representatives who receive Confidential Information, that United States securities laws may prohibit any person who has material, non-public information concerning an issuer from purchasing or selling securities of such issuer or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities. Double Point Ventures understands and acknowledges that the information disclosed under this Agreement may preclude it from purchasing or selling securities in Lumos for a period of time.
7. Disclosing Party retains its entire right, title, and interest in and to all Confidential Information.
