Confidentiality Agreement between Bayer AG, Leverkusen, Bayer HealthCare AG, Leverkusen, and Schering AG, Berlin (each a “Party” and collectively the “Parties”) Purpose of the Agreement
Exhibit
(e)(2)
between
Xxxxx
XX, Leverkusen,
Bayer
HealthCare AG, Leverkusen,
and
Schering
AG, Berlin
(each
a “Party” and collectively the “Parties”)
§
1
Purpose
of the Agreement
(1) |
After
successful completion of the takeover offer by Dritte BV GmbH, a
wholly owned subsidiary of Xxxxx XX, Schering AG and its subsidiaries
(each a “Schering Company”, collectively the “Schering Companies”) now
belong to the Bayer group as affiliated companies. Within the Bayer
group, Xxxxx XX acts as the strategic holding company directing
the Bayer
group, and Bayer HealthCare AG (“BHC”), a wholly owned subsidiary of Xxxxx
XX, directs the sub-group
HealthCare.
|
(2) |
In
order to enable Xxxxx XX to fulfil its role as strategic holding
company
also in view of Schering AG and the Schering Companies (collectively,
the
“Schering Group”), and in order to enable an efficient integration of the
Schering Group into the Bayer group and its sub-group HealthCare,
Schering
AG and the Schering Companies on one side and Xxxxx XX, BHC and
the
remaining subsidiaries of Xxxxx XX not belonging to the Schering
Group
(each a “Bayer Company”, collectively the “Bayer Companies”) on the other
side expect to exchange certain Confidential Information as defined
in
§ 2 of this Agreement. The Parties wish to ensure that they will
not
suffer any disadvantages from such transfer of Confidential
Information.
|
(3) |
Due
to the economic importance of Confidential Information, the Parties
undertake to treat such Confidential Information strictly in confidence
and to make use thereof exclusively as set out in this
Agreement.
|
1
§
2
Confidential
Information
(1) |
“Confidential
Information” shall mean all non-public information in relation to Schering
AG, any Schering Company, Xxxxx XX, BHC or any Bayer Company, including
information about the business, business processes, products, R&D
activities, staff, know-how, analyses, compilations, studies, documents
or
other materials (regardless of whether communicated orally, in
written
form or via other media), furnished by or on behalf of Schering
AG or a
Schering Company to Xxxxx XX, BHC or any Bayer Company, or furnished
by or
on behalf of Xxxxx XX, BHC or a Bayer Company to Schering AG or
any
Schering Company, during or before the term of this Agreement.
For the
avoidance of doubt, this also includes information exchanged on
the basis
of separate agreements between Schering AG or a Schering Company
and Xxxxx
XX, BHC or a Bayer Company.
|
(2) |
However,
Confidential Information does not
include:
|
(a) |
information
which was publicly known prior to the execution of this Agreement
or has
become publicly known thereafter, unless the disclosure results
from a
breach of this Agreement;
|
(b) |
information
which Xxxxx XX, BHC, a Bayer Company, Schering AG or a Schering
Company
has obtained from third parties on a non-confidential basis, provided
that
the recipient is not aware after reasonable inquiry that the disclosure
of
information by such third party constitutes a breach of its legal,
contractual or fiduciary obligations vis-à-vis
Schering AG, any Schering Company, Xxxxx XX, BHC or any Bayer
Company;
|
(c) |
information
relating to Schering AG or any Schering Company which was known
by Xxxxx
XX, BHC or the respective Bayer Company prior to the disclosure
of such
information by or on behalf of Schering AG or the Schering
Company;
|
(d) |
information
relating to Xxxxx XX, BHC or any Bayer Company which was known
by Schering
AG or the respective Schering Company prior to the disclosure of
such
information by or on behalf of Xxxxx XX, BHC or the Bayer
Company.
|
2
§
3
Confidentiality
Obligations
(1) |
Except
as permitted under this Agreement, Xxxxx XX and BHC undertake to
treat,
and Xxxxx XX guarantees that the Bayer Companies will treat, all
Confidential Information in relation to Schering AG or any Schering
Company and furnished by or on behalf of Schering AG or a Schering
Company
to Xxxxx XX, BHC or any Bayer Company as confidential and to use
such
Confidential Information only for one of the following
purposes:
|
(a) |
for
fulfilling Bayer AG’s role as the strategic holding company of the Bayer
group, in particular for determining the strategy of the Bayer
group,
including the Schering Group, and for the reporting and accounting
of the
Bayer group, or
|
(b) |
for
the planning and legally permissible implementation of measures
(including
agreements, transactions, acts and actions etc.) relating to the
integration of the Schering Group into the Bayer group,
or
|
(c) |
if
a domination agreement (Beherrschungsvertrag)
enters
into force with Schering AG as the controlled company and a Bayer
group
Company (but excluding Schering Companies) as the controlling company,
any
use permissible under such domination
agreement.
|
Any
other
use of such Confidential Information by Xxxxx XX, BHC or a Bayer Company
requires the prior written consent of Schering AG.
(2) |
Except
as permitted under this Agreement, Schering AG undertakes to treat,
and
guarantees that the Schering Companies will treat, all Confidential
Information in relation to Xxxxx XX, BHC or any Bayer Company and
furnished by or on behalf of Xxxxx XX, BHC or a Bayer Company to
Schering
AG or any Schering Company as confidential and to use such Confidential
Information only for the planning and legally permissible implementation
of measures (including agreements, transactions, acts and actions
etc.)
relating to the integration of the Schering Group into the Bayer
group.
|
Any
other
use of such Confidential Information by Schering AG or a Schering Company
requires the prior written consent of Xxxxx XX.
(3) |
However,
Xxxxx XX, BHC, each Bayer Company, Schering AG and each Schering
Company
are entitled (i) to share Confidential Information with external
advisers
(such as
|
3
business
consultants, chartered accountants, auditors, tax advisers, lawyers,
investment bankers) and selected persons of its group (the “Authorized
Representatives”), provided the external advisers and group persons are
subject to a professional secrecy obligation or, if requested by
Schering
AG, Xxxxx XX or BHC, have undertaken in writing to comply with
the
confidentiality obligations of this Agreement and (ii) to disclose
Confidential Information to any court, public authority, stock
exchange or
other institution, provided and to the extent that Xxxxx XX, BHC,
the
respective Bayer Company, Schering AG or the respective Schering
Company
is under a mandatory obligation to disclose such Confidential Information.
Furthermore, Xxxxx XX, BHC, each Bayer Company, Schering AG, and
each
Schering Company may disclose Confidential Information to the extent
the
purpose of use set forth in paras 1 or 2 of this § 3 requires disclosure
to third parties provided that, if requested by Schering AG, Xxxxx
XX or
BHC, the relevant third party has undertaken in writing to comply
with the
confidentiality obligations of this
Agreement.
|
(4)
|
Xxxxx
XX, BHC and Schering AG shall share Confidential Information only
with
those persons who are absolutely necessary to be involved in connection
with the purpose of use (“need to know basis”), and shall ensure that
their respective subsidiaries proceed in the same
manner.
|
(5) |
Each
and all documents and data constituting Confidential Information
shall be
stored carefully and protected from unauthorized
access.
|
§
4
Breach
of this Agreement
The
Parties understand that each Party may suffer serious disadvantages from
any
breach of this Agreement by the respective other Party. In addition to the
right
to demand specific performance and to any other remedy that may be available
under statutory law,
(a) |
Schering
AG will be entitled to demand compensation from Xxxxx XX and/or
BHC for
any damage suffered by Schering AG or any Schering Company for
reason of
any such breach by Xxxxx XX and/or BHC, respectively, and to
be put in the position in which it had been had no such breach
occurred;
and
|
(b) |
Xxxxx
XX will be entitled to demand compensation from Schering AG for
any damage
suffered by Xxxxx XX or any Bayer Company, and BHC shall be entitled
to
demand compensation from Schering AG for any damage suffered
by BHC,
for
|
4
reason
of any such breach by Schering AG, and to be put in the position
in which
it had been had no such breach
occurred.
|
§
5
Term
of the Agreement and Obligation to Return
(1) |
This
Agreement terminates if and as soon
as
|
(a) |
Schering
AG is no longer a company controlled by Xxxxx XX within the meaning
of
sec. 17 of the German Stock Corporation Act (Aktiengesetz),
or
|
(b) |
it
is terminated by one of the Parties by written notice to the other
Parties
with a notice period of
1 week.
|
(2) |
If
this Agreement terminates as set forth under para 1 of this § 5, then upon
request of one of the Parties, the Parties shall return and shall
cause
each of their subsidiaries to return, at their own expense, all
Confidential Information, including all copies and data files (regardless
of the form in which such reproductions are maintained) to the
respective
other Party. Furthermore, Xxxxx XX, BHC and Schering AG shall destroy
and
shall cause each of their subsidiaries to destroy all analyses,
compilations, memoranda or other documents prepared by them or
any of
their subsidiaries or Authorized Representatives, which contain
or
otherwise reflect Confidential Information received from the respective
other Party or one of its subsidiaries. However, the aforesaid
shall not
apply to the extent the return or destruction of Confidential Information
would create costs that are grossly disproportionate to the interest
of
the respective other Party in having the relevant Confidential
Information
returned and destroyed. The aforesaid shall also not apply to Confidential
Information and all documents containing Confidential Information
which
the Parties are legally obligated to keep. In such cases the Parties
shall
continue to treat Confidential Information obtained prior to the
termination of this Agreement in accordance with their obligations
under
this Agreement, and they shall continue to ensure that their subsidiaries
comply with the same obligations.
|
(3) |
Upon
request of Schering AG, Xxxxx XX and BHC are obligated, and upon
request
by Xxxxx XX or BHC, Schering AG is obligated to provide and to
cause each
of their subsidiaries to confirm in writing compliance with the
requirements set forth in this § 5 para
2.
|
5
§
6
Miscellaneous
(1) |
This
Agreement constitutes the entire agreement between the Parties
with
respect to the subject matter thereof and supersedes all prior
agreements
between the Parties with respect to the subject matter thereof,
including
the confidentiality agreements entered into by Schering AG and
Xxxxx XX on
March 19, 2006 and May 3, 2006.
|
(2) |
Changes
and amendments to this Agreement, including a waiver of this written
form
requirement, are only valid if they are made in
writing.
|
(3) |
This
Agreement is governed by German
law.
|
(4) |
Should
any individual provision of this Agreement be or become fully or
partially
null and void, or impractical, or should any provision be deficient,
the
validity of the remainder of this Agreement shall in no way be
affected. A
suitable provision shall be included as a substitute for any invalid,
ineffective or impractical provisions and/or to make up for such
deficiencies which, as far as legally feasible, shall be as close
as
possible to the original intention with reference to the effects
and
purpose of these provisions, had such item been considered by
them.
|
Place
and Date:
__________/June ___, 2006
Accepted
and agreed by Xxxxx XX:
|
||
/s/
Xxxxx Xxxxxxxxx
|
/s/
Xxx Xxxxxx
|
|
Name:
Xxxxx Xxxxxxxxx
Title:
Senior Counsel
|
Name:
Xxx Xxxxxx
Title:
|
|
Accepted
and agreed by Bayer HealthCare AG:
|
||
/s/ Bey
|
/s/
X. Xxxxxxxxx
|
|
Name:
Bey
Title: BHC
GC
|
Name:
X. Xxxxxxxxx
Title:
Senior Counsel
|
6
Berlin,
June 21, 2006
Accepted
and agreed by Schering AG:
|
||
/s/ X.
Xxxxxxx-Xxxxxxxxx
|
/s/
Xxxxxx Xxxxxxxxxx
|
|
Name:
Xxx Xxxxxxx-Xxxxxxxxx
Title:
Legal Counsel
|
Name:
Xx. Xxxxxx Xxxxxxxxxx
Title:
Legal Counsel
|
7