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EXHIBIT 5
CONFIDENTIAL DISCLOSURE AGREEMENT
This Agreement (the "Agreement") is entered into as of this 23rd day of June
1999 by and between SIBIA Neurosciences, Inc., having a business address of 000
Xxxxx Xxxxxxxxx Xxxxx, Xxxxx 000, Xx Xxxxx, XX 00000 ("SIBIA") and Merck & Co.,
Inc., with an address of Xxx Xxxxx Xxxxx, Xxxxxxxxxx Xxxxxxx, XX 00000-0000
("Recipient").
1. PROPOSED RELATIONSHIP. SIBIA wishes to assure the protection and
preservation of the confidential and/or proprietary nature of information to be
disclosed to Recipient in connection with a possible business relationship
between the parties (the "Proposed Relationship").
2. CONFIDENTIAL INFORMATION. Except as set forth in Paragraph 3, all
information disclosed by SIBIA to Recipient relating to the Proposed
Relationship is "Confidential Information" and shall include all information
relating to the existence and contents of this Agreement and SIBIA's
pharmaceutical business including patents, copyrights, patent or copyrights
applications, trade secrets, techniques, formulas, products, protocols, test
data, results, conclusions or reports relating to the Proposed Relationship or
studies conducted by SIBIA or authorized by SIBIA to be conducted, whether in
oral, written, graphic or electronic form. Recipient shall, upon the request of
SIBIA, return all Confidential Information and any copies of such to SIBIA.
Information disclosed orally shall be identified as confidential at the time of
disclosure, and summarized in writing promptly following such disclosure.
3. NONCONFIDENTIAL INFORMATION. Confidential Information shall not include
information which (i) at the time of disclosure is readily available in the
public domain, or thereafter becomes publicly available other than through a
breach of this Agreement; (ii) was already known to Recipient prior to its
disclosure by SIBIA as documented in Recipient's written records made prior to
such disclosure by SIBIA; (iii) is disclosed to Recipient by a third party who
has the right to disclose such information and does not restrict its
disclosure; (iv) is independently developed by an employee or agent of
Recipient without knowledge of SIBIA's Confidential Information; or (v) is
required by law to be disclosed by Recipient.
4. PERMITTED USE AND DISCLOSURE. Recipient may use Confidential Information
only for the purposes of evaluating or discussing the Proposed Relationship.
Recipient may disclose Confidential Information only to its directors,
officers, employees and agents (including, in the case of Merck, officers and
employees of Merck & Co., Inc.) who have a need to know in order to properly
evaluate the Proposed Relationship and who have been apprised of its
confidential and proprietary nature.
5. NONUSE AND NONDISCLOSURE. Recipient shall exercise at least the same
standard of care in safeguarding Confidential Information as Recipient
exercises in safeguarding its highest level of confidential or proprietary
information. Recipient shall not, for a period of five (5) years from the date
of this Agreement (i) disclose Confidential Information to any person who does
not have a need to know such information or to any third party, without SIBIA's
prior written consent; (ii) permit or engage in any use of Confidential
Information not authorized by this Agreement; or (iii) reproduce in any form
any Confidential Information, except as required to evaluate the Proposed
Relationship.
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Confidential Disclosure Act Page 2
6. NO LICENSE. This Agreement does not grant to Recipient any license to or
right in the Confidential Information. Nothing in this Agreement shall be
construed, by implication or otherwise, as an obligation to enter into any
further agreement concerning the Confidential Information, or as a grant of a
license to Recipient to use the Confidential Information other than for the
purposes set forth in this Agreement. If Recipient expresses an interest in
acquiring rights in the Confidential Information, the parties will explore the
possibility of working out a mutually satisfactory agreement for the commercial
use of said Confidential Information.
7. SPECIFIC PERFORMANCE. In the event of a material breach of this Agreement
by Recipient, Recipient agrees that SIBIA shall be entitled to seek specific
performance of Recipient's obligations under this Agreement, as well as for
such further relief as may be granted by a court of competent jurisdiction or
other body chosen by the parties to settle disputes.
8. NO AGENT RELATIONSHIP. Recipient is not an agent of SIBIA and Recipient
shall have no authority to act as an agent of SIBIA.
9. ENTIRE AGREEMENT. This Agreement contains the entire understandings
between the parties. Nothing contained in this Agreement shall be construed as
an obligation of either party to enter into further agreement or negotiations.
10. GOVERNING LAW. This Agreement shall be governed by the laws of the state
of California.
SIBIA NEUROSCIENCES, INC. MERCK & CO., INC.
By: /s/ XXXXXXX X. XXXXX By: /s/ XXXXXXX X. XXXXXX
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Name: Xxxxxxx X. Xxxxx Name: Xxxxxxx X. Xxxxxx
Title: VP Corporate Development Title: Vice President, FE&A
Business Development
Date: 6/23/99 Date: 6/21/99
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