LEXON, INC.
MUTUAL CONFIDENTIALITY AGREEMENT
This Confidentiality Agreement ("Agreement") is entered into and
effective this 21st day of April, 1999 by and between Lexon, Inc. ("Lexon")
and Chiron Diagnostics Corporation ("CDC").
WHEREAS, Lexon and CDC are contemplating a business relationship in
which each proposes to disclose and provide to the other certain Confidential
Information as defined below concerning colon cancer detection and certain
business, financial and other information defined as Confidential Information.
NOW, THEREFORE, for good and valuable consideration, the receipt,
adequacy and sufficiency of which is hereby acknowledged, the parties agree as
follows:
1. For purposes of this Agreement, the term "Confidential
Information" shall mean all Technical Information, all Business and Commercial
Information, and All Miscellaneous Information concerning colon cancer which is
confidential or proprietary or competitively sensitive and which is disclosed by
either party to the other party hereto or to their affiliates and their
respective directors, officers, employees, contractors, agents, and other
representatives of Confidential Information pursuant to this Agreement, whether
before or after the date hereof, including without limitation the following:
(i) Technical Information. All trade secrets, inventions,
discoveries, know-how, formulas, formulations, compositions,
specifications, patents, patent applications, copyrights,
software and applications, drawings, schematics, processes,
process technologies, manufacturing techniques, tests, test
results, research and development and similar technical
information, together with all actual and proposed
modifications and alterations made, created, developed,
invented or discovered by or for and on behalf of a party to
this Agreement; and
(ii) Business and Commercial Information. All information
concerning the financial condition, business and financial
results of operations, marketing strategies, financial
projections, contacts with customers and prospective
customers, prospective business acquisitions, lists of
customers and their expected requirements, customer
representatives, lists of prospective customers and their
expected requirements, costs, pricing, margins, sales,
quantities, product plans, market information, purchase
orders, sources of supply, projections, confidential
personnel information, all contracts or agreements
containing confidentiality provisions, the contents of all
agreements relating to any of the foregoing and all other
information relating to a party to this Agreement or its
customers or prospective customers which is either
confidential or proprietary or competitively sensitive; and
(iii)Miscellaneous Information and Documentation. All records,
reports, analyses, memoranda, notes, analyses, compilations,
studies, reports and copies and extracts thereof, however
and whenever arising,
containing any Confidential Information with respect to any
of the foregoing in every recordable form.
"Confidential Information" also includes but is not limited to information
provided by or on behalf of a party to this Agreement before and after the date
hereof.
2. "Confidential Information" does not include (a) information
which is or becomes known to the general public through no fault of the
receiving party, (b) information which was rightfully in the possession
receiving party prior to its disclosure by or on behalf of the other party
hereto, and (c) information which comes into the possession of receiving party
without violation of any contractual or legal obligation. Even if these
exceptions to the confidential nature of information provided do not apply to a
specific item, that does not relieve the receiving party of its obligations
hereunder with respect to all other items. The receiving party shall have the
burden of proof relating to all exceptions to the confidential treatment of
Confidential Information hereunder.
3. The receiving party agrees to hold the Confidential
Information in strict confidence and not to communicate, disclose, divulge,
disseminate, publish or transfer the Confidential Information to any other
person, except as expressly permitted hereby, without the prior written consent
of the other party.
4. The receiving party agrees to use the Confidential
Information solely in connection with proposed business relationship with the
other party hereto or an affiliate thereof and for no other purpose whatsoever.
5. The receiving party agrees that the Confidential Information
constitutes proprietary information owned exclusively by the other party hereto
or by one of its affiliates or its customers or prospects.
6. The receiving party shall confine its dissemination of the
other party's Confidential Information only to those individuals within the
receiving party's organization or the receiving party's consultants who have a
need to evaluate the Confidential Information in connection with the proposed
business relationship with the other party and who are bound to obligations of
confidentiality and non-use at least as strict as those contained herein.
7. To the extent practical, the disclosing party shall furnish
Confidential Information in documentary or tangible form marked as
"Confidential". However, if disclosure of Confidential Information is in
non-documentary form or if the disclosure is first made orally or by visual
inspection, the disclosing party shall have the right or, if requested by
receiving party, the obligation to confirm in writing the fact and the general
nature of such disclosure within a reasonable time after such disclosure or
request is made. The failure to xxxx as "Confidential" information which is in
fact Confidential Information hereunder shall not reduce or otherwise alter the
obligations of confidentiality of that information hereunder.
2
8. Nothing contained herein shall be construed as granting or
implying any right or license to use the Confidential Information disclosed
hereunder, except solely for the permitted purposes as set forth herein.
9. The parties make no representation or warranty as to the
accuracy or completeness of the Confidential Information provided to the other
hereunder. The receiving party expressly agrees that neither the disclosing
party nor its members, directors, officers, employees, agents, advisors,
attorneys, accountants, or representatives shall have any liability to receiving
party or to anyone else for any unauthorized use of Confidential Information.
10. The receiving party agrees to return to the disclosing party
all Confidential Information not later than the earlier of (1)15 days after the
termination of this Agreement and (2) immediately after receipt of a written
request from the other, whichever is sooner.
11. No failure or delay by the disclosing party in exercising
any right, remedy, power or privilege shall operate as a waiver thereof, nor
shall any single or partial exercise thereof preclude the exercise of any other
right, remedy, power or privilege hereunder or as permitted by law or in equity.
12. The term of this Agreement is 2 years.
13. The rights, duties and obligations of the parties cannot be
assigned without the written consent of all interested parties.
14. This Agreement does not obligate any of the parties hereto
to enter into any transaction or agreement and does not obligate any party to
purchase or sell equipment or to provide services.
15. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, USA.
3
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed effective as of the date first written above.
Lexon, Inc. Chiron Diagnostics Corporation
By /s/ X.X. XXXXXXXX, XX. By /s/ XXXX XXXXXXXX
Dr. Xxxxxx Xxxxxxxx, Jr., M.D. Xxxx Xxxxxxxx
Vice President Manager, Business Development
Nucleic Acid Diagnostics &
New Marker R&D
Bayer
4
