This Non-Disclosure Agreement (this “Agreement”), effective as of the date hereof, is entered into by and between Alkeon Capital Management, LLC (“Alkeon”) and the party that clicks through the acknowledgement accompanying this Agreement (“you” or “Recipient”) in relation to evaluating, negotiating and/or implementing a potential business relationship between the Parties in respect of an investment in an Alkeon-managed investment fund (the “Purpose”). Each of Alkeon and you is sometimes referred to herein as a “Party”, and together as the “Parties”.

NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, the Parties agree as follows:

1. Confidential Information. Except as set forth in Section 2 below, “Confidential information” means any and all non-public, confidential, proprietary, commercially valuable, or competitively sensitive information disclosed or made available to you, including via electronic data room, on or after the Effective Date, in connection with the Purpose, by Alkeon to you or your affiliates, or to any of your or your affiliates’ respective employees, officers, directors, partners, shareholders, agents, consultants, potential financing sources, or advisors (including, without limitation, attorneys, accountants, and financial advisors) (collectively, such persons who are furnished with the Confidential Information by you or at your direction, “Representatives”), whether disclosed orally or accessed directly or indirectly in written, electronic or other form of media, and whether or not marked, designated, or otherwise identified as “confidential”, including, without limitation, any information relating to Alkeon affiliates or personnel, the existence of this Agreement and the nature of the Purpose, including any and all discussions with you related to the Purpose, whether oral, written or presented in any other medium, that is disclosed to you by Alkeon or a third party authorized by Alkeon to make such a disclosure.

2. Exclusions from Confidential Information. Except as required by applicable federal, state, or local law or regulation, the term “Confidential Information” as used in this Agreement shall not include information that: (a) at the time of the disclosure is, or thereafter becomes, generally available to and known by the public other than as a result of, directly or indirectly, any breach of this Agreement by Recipient or any of its Representatives; (b) at the time of disclosure is, or thereafter becomes, available to Recipient or any of its Representatives on a non-confidential basis from a third-party source, provided that such third party is not known by Recipient to be prohibited from disclosing such Confidential Information to Recipient by any legal, fiduciary, or contractual obligation to Alkeon with respect to such information; (c) was known by or in the possession of Recipient or its Representatives from a source not known by Recipient to be prohibited from disclosing such Confidential Information to Recipient by any legal, fiduciary, or contractual obligation to Alkeon with respect to such information; or (d) is independently developed by Recipient or its Representatives without use of the Confidential Information.

3. Recipient Obligations. Recipient shall: (a) protect and safeguard the confidentiality of all such Confidential Information with at least the same degree of care as Recipient protects its own confidential information of a similar nature, but in no event with less than a commercially reasonable degree of care; (b) not use the Confidential Information for any purpose other than the Purpose, and for no other purpose; (c) not disclose the Confidential Information to any person or entity other than as provided herein, except to Recipient’s Representatives who: (i) need to know the Confidential Information to assist Recipient, or act on its behalf, in relation to the Purpose; (ii) are informed in writing by Recipient of the confidential nature of the Confidential Information; and (iii) are directed to comply with the confidentiality and use terms of this Agreement; (d) acknowledge all applicable on-site access, remote access, and related security rules and procedures of Alkeon; (e) promptly notify Alkeon of any unauthorized disclosure of Confidential Information in material breach of this Agreement by Recipient or its Representatives of which Recipient has knowledge; and reasonably cooperate with Alkeon to remedy such breach; and (g) be responsible for any breach of the confidentiality and use terms of this Agreement by any of its Representatives, including their failure to follow any direction required to be given by Recipient under this Agreement, provided, however, that Recipient shall not be liable for any such breach by any such Representative who has executed a separate confidentiality agreement with Alkeon.

4. Additional Confidentiality Obligations. Except as required by applicable law, or otherwise as mutually agreed in writing by the Parties, Recipient shall not, and shall direct its Representatives not to, disclose to any person (other than Recipient’s Representatives): (a) that the Confidential Information has been made available to Recipient or its Representatives, or that it has inspected any portion of the Confidential Information; (b) that discussions or negotiations may be or are underway between the Parties regarding the Confidential Information or the Purpose; or (c) any terms, conditions, or other arrangements that are being discussed or negotiated in relation to the Confidential Information or the Purpose. All such information described in the immediately preceding sentence shall be deemed “Confidential Information” for all purposes hereunder, including with respect to permitted disclosures thereof. Furthermore, Recipient shall acknowledge all applicable federal, state, and local data protection laws and regulations in the maintenance, disclosure, and use of all Personal Information contained in any Confidential Information that is disclosed to Recipient or its Representatives hereunder. For purposes of this Agreement, “Personal Information” means information that relates to an individual person and identifies or can be used to identify, locate, or contact that individual alone or when combined with other personal data or identifying information that is or can be associated with that specific individual.

5. Required Disclosure. Any disclosure by Recipient or its Representatives of any of Alkeon’s Confidential Information pursuant to applicable law, rule, legal process, regulation or order (a “Legal Order”) shall be permitted, subject to compliance with the terms of this Section. Prior to making any such disclosure, Recipient shall, to the extent legally permissible, make commercially reasonable efforts to provide Alkeon with: (a) prompt written notice of such requirement so that Alkeon may seek a protective order or other remedy; and (b) reasonable assistance, at Alkeon’s expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure. If, after providing such notice and assistance as required herein, Recipient or such Representative is required to disclose Confidential Information, Recipient or such Representative shall disclose no more than that portion of the Confidential Information which, on the advice of legal counsel, such Legal Order specifically requires, and shall use commercially reasonable efforts to obtain assurances from the applicable court or agency that such Confidential Information will be afforded confidential treatment, at Alkeon’s cost and expense. Notwithstanding the foregoing, the Recipient and its Representatives

   (a) may disclose Confidential Information in connection with routine supervisory audit or regulatory examinations (including, without limitation, by regulatory or self-regulatory bodies) to which they are subject in the course of their respective businesses and (b) shall not be required to provide notice to any party in the course of any such routine supervisory audit or regulatory examination, provided that such routine audit or examination does not specifically target Alkeon, the Purpose or the Confidential Information. Further, nothing herein shall prohibit or restrict Recipient or its Representatives from (i) taking any action protected under the whistleblower provisions of applicable law, rule, or regulation (including disclosing any information to, or communicating or cooperating with, any federal, state, or local governmental, regulatory, or self-regulatory authority in respect of a possible violation of applicable law, rule, or regulation), or (ii) receiving any award in connection therewith.

6. Return or Destruction of Confidential Information. At Alkeon’s written request at any time during the term of this Agreement, Recipient shall, and shall direct its Representatives to, destroy all Confidential Information in Recipient’s possession. Recipient shall confirm such destruction to Alkeon in writing delivered to Alkeon promptly upon written request. Notwithstanding the foregoing, Recipient and its Representatives shall (i) be permitted to retain copies of the Confidential Information in order to comply with applicable law, regulation or bona fide internal document retention policies, and (ii) not be required to destroy any computer records or files containing Confidential Information that have been created pursuant to archiving and back-up procedures; provided that any Confidential Information so retained shall remain subject to the confidentiality and non-use terms of this Agreement for two (2) years from the Effective Date.

7. No License. All Confidential Information is and shall remain the sole property of Alkeon. Recipient recognizes and agrees that nothing contained in this Agreement will be construed as granting any property rights, by license or otherwise, to any Confidential Information disclosed under this Agreement, or to any invention or any patent, copyright, trademark, or other intellectual property right that has issued or that may issue, based on such Confidential Information. Recipient will not make, have made, use or sell for any purpose any product or other item using, incorporating or derived from any Confidential Information. Neither this Agreement nor the disclosure of any Confidential Information hereunder shall result in any obligation on the part of Alkeon to enter into any further agreement with Recipient, license any products or services to Recipient, or disclose any particular information.

8. No Duplicating. Confidential Information shall not be reproduced in any form except as required to accomplish the intent of this Agreement. Any reproduction of any Confidential Information shall remain the property of Alkeon and shall contain any and all confidential or proprietary notices or legends that appear on the original, unless authorized in advance in writing by Alkeon.

9. Term and Termination. The term of this Agreement shall commence on the Effective Date and this Agreement, and all obligations under this Agreement shall expire two (2) years after the Effective Date, except as otherwise explicitly provided herein; provided that with respect to any portion of the Confidential Information that constitutes Alkeon’s “Trade Secrets” (as such term is defined under the Uniform Trade Secrets Act), the confidentiality obligations hereunder shall survive for the shorter of (i) thirty-six (36) months from the Effective Date, or (ii) until such information is no longer deemed a Trade Secret.

10. No Representations or Warranties. Neither Alkeon nor any of its Representatives make any representation or warranty, express or implied, as to the accuracy or completeness of the Confidential Information disclosed to Recipient hereunder. Neither Alkeon nor any of its Representatives shall be liable to Recipient or any of its Representatives relating to or resulting from Recipient’s use of any of the Confidential Information or any errors therein or omissions therefrom.

11. No Other Obligation. The Parties agree that: (a) this Agreement does not require or compel Alkeon to disclose any Confidential Information to Recipient; (b) neither Party shall be under any legal obligation of any kind whatsoever, or otherwise be obligated to enter into any business or contractual relationship, investment, or transaction, by virtue of this agreement, except for the matters specifically agreed to herein; and (c) either Party may at any time, at its sole discretion with or without cause, terminate discussions and negotiations with the other Party, in connection with the Purpose or otherwise.

12. Remedies. Each Party acknowledges and agrees that money damages might not be a sufficient remedy for any breach or threatened breach of this Agreement by such Party or its Representatives. Therefore, in addition to all other remedies available at law (which neither Party waives by the exercise of any rights hereunder), the non-breaching Party shall be entitled to seek specific performance and injunctive and other equitable relief as a remedy for any such breach or threatened breach, and the Parties hereby waive any requirement for the securing or posting of any bond or the showing of actual monetary damages in connection with such claim. In the event that either Party institutes any legal suit, action, or proceeding against the other Party arising out of or relating to this Agreement, the prevailing Party in the suit, action, or proceeding shall be entitled to receive, in addition to all other damages to which it may be entitled, the costs incurred by such Party in conducting the suit, action, or proceeding, including reasonable attorneys’ fees and expenses and court costs.

13. Governing Law, Jurisdiction, and Venue. This Agreement shall be governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule (whether the State of New York or any other jurisdiction) that would cause the application of laws of any jurisdiction other than those of the State of New York. Any legal suit, action, or proceeding arising out of or related to this Agreement or the matters contemplated shall be instituted exclusively in the federal courts of the United States or the courts of the State of New York, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding and waives any objection based on improper venue or forum non conveniens. Service of process, summons, notice, or other document by mail to such Party’s address set forth herein shall be effective service of process for any suit, action, or other proceeding brought in any such court.

14. Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder shall be in writing and shall be deemed to have been given: (a) when delivered by hand (with written confirmation of receipt); (b) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (c) on the date sent by email of a PDF document (with confirmation of receipt) if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient; or (d) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the Parties at the respective addresses set forth on the signature page(s) of this Agreement (or to such other address that may be designated by a Party from time to time in accordance with this Section). Email shall constitute a writing for all purposes hereunder, other than amendments or modifications hereto.

15. Entire Agreement. This Agreement states the entire agreement between the Parties relating to its subject matter and supersedes all prior and contemporaneous agreements, understandings, and communications, whether written or oral, between the Parties relating thereto, absent another agreement that explicitly supersedes this Agreement. Any additional or inconsistent terms in any quotation, order acknowledgement, or purchase order provided by Recipient will not be binding on Alkeon and will have no legal effect. In the case of a conflict between this Agreement and the terms or conditions of use or confidentiality or non-disclosure provisions of any electronic data room established or maintained by Alkeon, this Agreement will be deemed to supersede such conflicting terms or conditions of use or confidentiality or non-disclosure provisions.

16. Severability. If any term or provision of this agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.

17. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, email or other means of electronic transmission, shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.

18. Assignment. Neither Party may assign any of its rights or delegate any of its obligations hereunder without the prior written consent of the other Party. Any purported assignment or delegation in violation of this Section shall be null and void. No assignment or delegation shall relieve the assigning or delegating Party of any of its obligations hereunder.

19. Waiver. No waiver by any Party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the Party so waiving. No waiver by any Party shall operate or be construed as a waiver in respect of any failure, breach, or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
20. Jury Trial Waiver. Each Party, to the extent permitted by law, knowingly, voluntarily, and intentionally waives its right to a trial by jury in any action or other legal proceeding arising out of or relating to this Agreement. This waiver applies to any action or legal proceeding, whether sounding in contract, tort or otherwise.

In consideration of the mutual obligations contained in this Agreement, the sufficiency of which is hereby acknowledged, the Parties agree to the terms and conditions herein. IF YOU ARE IN AGREEMENT WITH THE FOREGOING, PLEASE CLICK THROUGH THE ACKNOWLEDGEMENT WHICH THEREUPON WILL CONSTITUTE OUR AGREEMENT WITH RESPECT TO THE SUBJECT MATTER HERE.