Exhibit (c)(4)
MUTUAL NON-DISCLOSURE AGREEMENT
Each undersigned party (the "Receiving Party") understands that the
other party (the "Disclosing Party") has disclosed or may disclose information
relating to the Disclosing Party's business particularly relating to uniform
informer libraries, chemi-informatic tools and the nature of chemical libraries
(including, with limitation, names and expertise of employees and consultants,
know-how, formulas, processes, ideas, inventions (whether patentable or not),
schematics, computer programs, software code, algorithms, development tools,
manufacturing capability or processes, chemical routes, chemical structures,
relationships with other businesses, business plans, and other technical,
business, financial, customer and product development plans, forecasts,
strategies and information), which to the extent previously, presently, or
subsequently disclosed to the Receiving Party is hereinafter referred to as
"Proprietary Information" of the Disclosing Party. Proprietary Information also
includes any information which the Disclosing Party has received from a third
party which the Disclosing Party is obligated to treat as confidential or
proprietary.
Notwithstanding the foregoing, nothing will be considered "Proprietary
Information" of the Disclosing Party unless either (1) it is first disclosed in
tangible form and is conspicuously marked "Confidential", "Proprietary" or the
like or (2) it is first disclosed in non-tangible form and orally identified as
confidential at the time of disclosure and is summarized in tangible form
conspicuously marked "Confidential" within thirty (30) days of the original
disclosure.
In consideration of and solely for the purpose of the parties'
discussion regarding a possible business transaction and any access the
Receiving Party may have to Proprietary Information of the Disclosing Party,
each party (as the Receiving Party) hereby agrees as follows:
1. Non-Disclosure and Non-Use Obligations. The Receiving Party
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agrees (i) to hold the Disclosing Party's Proprietary Information in strict
confidence and to take all reasonable precautions to protect such Proprietary
Information (including, without limitation, all precautions the Receiving Party
employs with respect to its most confidential materials), (ii) not to divulge
any such Proprietary Information or any information derived therefrom to any
third person (except consultants or agents, subject to the conditions stated
below), (iii) not to make any use whatsoever at any time of such Proprietary
Information except to evaluate internally whether to enter into a proposed
business transaction with the Disclosing Party without the prior written
permission of the disclosing party, (iv) not to remove or export from the United
States or re-export any such Proprietary Information or any direct product
thereof except in compliance with all licenses and approvals required under
applicable export laws and regulations, including without limitation, those of
the U.S. Department of Commerce, and (v) not to copy or reverse engineer any
such Proprietary Information. Any employee, consultant or agent given access to
any such Proprietary Information must have a legitimate "need to know" and shall
be similarly bound in writing. The parties shall be entitled to exchange
Proprietary Information under the
terms of this Agreement for a period not to exceed two (2) years from the date
hereof, unless otherwise extended by mutual written agreement of the parties or
incorporated into a separate agreement. Without granting any right or license,
the Disclosing Party agrees that the foregoing clauses (i), (ii), (iii) and (v)
shall not apply with respect to all obligations after five (5) years following
the disclosure thereof or any information that the Receiving Party can document
(i) is or (through no improper action or inaction by the Receiving Party or any
agent, consultant or employee) becomes generally known to the public, (i) was in
its possession or the possession of an affiliate or consultant or known by it
prior to receipt from the Disclosing Party, (iii) was rightfully disclosed to
it, an affiliate or a consultant by a third party without restriction, or (iv)
was independently developed without use of any Proprietary Information of the
Disclosing Party by employees of the Receiving Party who can be demonstrated to
have had no access to such information. The Receiving Party may make disclosures
required by court order provided the Receiving Party uses diligent efforts to
limit disclosure and to obtain confidential treatment or a protective order and
has allowed the Disclosing Party to participate in the proceeding.
2. Patent or Copyright Infringement. Nothing in this Agreement is
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intended to grant any rights under any patent or copyright of the Disclosing
Party, nor shall this Agreement grant the Receiving Party any rights in or to
the Disclosing Party's Proprietary Information, except the limited right to
review such Proprietary Information solely for the purpose of evaluating a
possible business transaction.
3. Return of Materials. Immediately upon (i) the decision by either
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party not to enter into a relationship as a result of the exchange of
information hereunder, or (ii) a request by the Disclosing Party at any time,
the Receiving Party will turn over to the Disclosing Party all Proprietary
Information of the Disclosing Party and all documents or media containing any
such Proprietary Information and any and all copies or extracts or derivatives
thereof to the extent it is requested by either party in writing, except that a
single copy may be retained for legal archival purposes, subject to protection
and non-disclosure in accordance with the term of this agreement. The Receiving
Party understands that nothing herein (i) requires the disclosure of any
Proprietary Information of the Disclosing Party, which shall be disclosed if at
all solely at the option of the Disclosing Party, or (ii) requires the
Disclosing Party to proceed with any proposed transaction or relationship in
connection with which Proprietary Information may be disclosed.
4. No Publicity. Except to the extent required by law, neither
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party shall disclose the existence or subject matter of the negotiations or
business relationship contemplated by this Agreement.
5. Securities Law Considerations. Each party is aware, and will
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advise its employees, consultants and agents who are informed of the matters
that are the subject of this agreement, of the restrictions imposed by the
United States securities laws on the purchase and sale of securities by any
person who has received material, non-public information from the issuer of such
securities and on the communication of such information to any other person when
it is reasonably foreseeable that such other person is likely to purchase or
sell such securities in reliance upon such information.
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6. Miscellaneous. The Receiving Party acknowledges and agrees that
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due to the unique nature of the Disclosing Party's Proprietary Information,
there can be no adequate remedy at law for any breach of its obligations
hereunder, that any such breach may allow the Receiving Party or third parties
to unfairly compete with the Disclosing Party resulting in irreparable harm to
the Disclosing Party, and therefore, that upon any such breach or any threat
thereof, the Disclosing Party may seek appropriate equitable relief (without the
need to post bond or other security) in addition to whatever remedies it might
have at law. The Receiving Party will notify the Disclosing Party in writing
immediately upon the occurrence of any such unauthorized release or other breach
of which it is aware. In the event that any of the provisions of this Agreement
shall be held by a court or other tribunal of competent jurisdiction to be to
any extent illegal, invalid or unenforceable, such provisions shall be limited
or eliminated to the minimum extent necessary so that this Agreement shall
otherwise remain in full force and effect. This Agreement shall be governed by
and construed in accordance with the laws of the State of California, without
regard to principles of conflicts of law. The parties agree that any dispute
regarding the interpretation or validity of this Agreement shall be subject to
the exclusive jurisdiction of the state and federal courts in and for the County
of San Diego, California, and each party hereby agrees to submit to the personal
and exclusive jurisdiction and venue of such courts. This Agreement supersedes
all prior discussions and writings and constitutes the entire agreement between
the parties with respect to the subject matter hereof. This Agreement may not
be amended except in an express writing signed by officers of both parties. No
waiver or modification of this Agreement will be binding upon either party
unless made in writing and signed by a duly authorized representative of such
party and no failure or delay in enforcing any right will be deemed a waiver.
Each party warrants to the other that it is duly authorized to enter
into this Agreement and that the terms of this Agreement are not inconsistent
with any of its respective outstanding contractual obligations. The execution
and performance of this Agreement does not obligate the parties to enter into
any other agreement or to perform any obligations other than as specified
herein.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year set forth below.
Date: 3-10-99
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COMBICHEM, INC., DUPONT PHARMACEUTICALS COMPANY,
a Delaware corporation a Delaware general partnership
By: /s/ Xxxxxxx Xxxxx, Xx. By: /s/ Xxxxx X. Block
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Xxxxxxx Xxxxx, Xx., Ph.D. Xxxxx X. Block, M.D.
Its: President and Its: Vice President, Product Planning
Chief Executive Officer and Acquisition
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