CONFIDENTIALITY AGREEMENT
This CONFIDENTIALITY AGREEMENT, dated as of the 6th day of
November, 1995, between PHYTOTECH, INC., a New Jersey corporation
("Phytotech"), having a place of business at 0 Xxxx Xxxx Xxxxx, Xxxxx 0,
Xxxxxxxx Xxxxxxxx, Xxx Xxxxxx 00000, and XXXXXXX X. NECHEMIE ("Recipient"),
having a place of business at c/o Wiss & Company, L.L.P., 000 Xxxxxxxxxx
Xxxxxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000. For purposes of this Agreement, the
term "party" shall mean Phytotech or Recipient, as the case may be, and each
of their respective employees, agents, attorneys, assignees and successors.
WHEREAS, in connection with various discussions between the parties,
it will be necessary for each party to disclose certain of its proprietary and
confidential information to the other party, each such party to determine the
confidential information it is willing to disclose; and
WHEREAS, the Information (as defined below) to be disclosed by
Phytotech to Recipient may include, but not be limited to, biological and
chemical Information on current and future projects.
NOW, THEREFORE, each party is willing to disclose confidential
Information to the other party for purposes of each party's working relationship
with the other party provided that each party agrees to accept such confidential
Information which is disclosed to it in accordance with the following terms:
1. As used in this Agreement, the term "Information" shall
include all information relating to the business, plans, and/or technology of
Phytotech, including, without limitation, all information considered by
Phytotech to be proprietary or confidential, all information received from
third parties and held in confidence by Phytotech, documents, data, know-how,
discoveries, inventions, invention disclosure statements, patent
applications, trade secrets, grant requests, scientific and engineering
information, computer software, correspondence, memoranda, plans (including,
without limitation, a copy of the business plan of Phytotech), notes,
summaries, analyses, studies, models, extracts of documents, records and
tangible manifestations reflecting, based on, or derived from any of the
foregoing, as well as copies and other reproductions thereof, whether in
writing or presented, stored or maintained in or by electronic, magnetic or
other means, media or devices, and oral communications, including, but not
limited to, those communications memorialized in writing and transmitted to
Recipient within 30 days of disclosure. The term "Information" shall not
include information which (i) is already in the Recipient's possession,
provided that such information is not subject to another confidentiality
agreement with or other obligation of secrecy to Phytotech, (ii) is or
becomes generally available to the public other than as a result of a
disclosure
contrary to the terms of this Agreement of the Recipient, or (iii) becomes
available to the Recipient on a non-confidential basis from a source other
than Phytotech, provided that such a source is not bound by a confidentiality
agreement with or other obligation of secrecy to Phytotech.
2. Each party agrees to protect the confidentiality of any and all
confidential Information which may be disclosed to it by the other party, to
take all reasonable precautions against the confidential Information being
acquired by any unauthorized party, to disclose the confidential Information
only to such of its employees and agents who require knowledge of the
confidential Information related to the purposes hereunder (the obligations and
duties contained herein binding such employees and agents), and not to disclose
such confidential Information, in whole or in part, to any third party not
expressly made a party to this Agreement nor use the confidential Information
for any purpose other than for each party's working relationship pursuant to
this Agreement or any other written agreements duly executed by the parties
hereto.
3. The Recipient agrees that he will not use the confidential
Information which it is required hereunder to keep confidential for any purpose
other than in connection with the working relationship of the parties herein,
without first entering into an agreement with Phytotech which is approved by
Phytotech covering the use thereof, and will promptly make full disclosure of
and assign to Phytotech all rights in and to any compounds, formulas,
processes, data, strategies, techniques, organisms, improvements, know-how,
trade secrets, inventions or other property or rights that occur as a result
of work by the Recipient party during the couse of, or subsequent to, and
derived from the Recipient's evaluation of the confidential Information.
4. In the event that the Recipient party is requested or required
(by oral questions, interrogatories, requests for information or documents,
subpoena, Civil Investigative Demand or other process) to disclose any
confidential Information, it is agreed that the Recipient party will provide
Phytotech with prompt notice of any such request or requirement so that
Phytotech may seek an appropriate protective order to waive the Recipient
party's compliance with the provisions of this Agreement. If, failing the
entry of a protective order or the receipt of a waiver hereunder, the
Recipient party is, in the opinion of the Recipient party's counsel,
compelled to disclose confidential Information, the Recipient party may
disclose that portion of the confidential Information which the Recipient
party's counsel advises it is compelled to disclose. In any event, the
Recipient party will not oppose action by Phytotech to obtain an appropriate
protective order or other reliable assurance that confidential treatment will
be accorded the confidential Information.
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5. This Agreement shall not be construed to create any obligation on
the part of either party to retain the other party's services, to compensate the
other party in any manner or to grant the other party any license, except as may
be set forth by a separate written agreement duly executed by Phytotech and
Recipient.
6. Notwithstanding the foregoing restrictions on confidentiality
and use, either party may disclose any confidential Information which is
disclosed to it hereunder to any of its Affiliates (as defined below) which
agree to be bound in writing by the terms hereof. Phytotech shall first
approve such disclosure and subsequently receive and accept such written
agreement. In the event of such disclosure, the terms "Recipient" and/or
"Phytotech", as applicable, shall include any such Affiliate to which such
party has disclosed the confidential Information. For purposes of this
Agreement, "Affiliate" means any corporation which controls, is controlled
by, or is under common control with, a party hereto. A corporation shall be
regarded as in control of another corporation if it owns or directly or
indirectly controls at least forty percent (40%) of the voting stock, if it
possesses, directly or indirectly, the power to direct or cause the direction
of the management and policies of the corporation.
7. Upon termination of the discussions referred to herein or upon
written demand by the disclosing party, each party shall promptly return to the
other party all documentation and Information provided to such party, and each
party will erase, destroy or otherwise dispose of any and all confidential
Information, data, drawings and documentation of the other party which have been
recorded or stored by electronic means by such party; provided, however, that
each party's legal department may retain one copy of such confidential
Information solely for the purpose of determining the scope of such party's
obligations hereunder.
8. Nothing in this Agreement shall be deemed to restrict in any way
the right of Phytotech to enter into similar agreements or pursue similar
arrangements with any other parties for the purpose of developing or marketing
the confidential Information provided by it hereunder before, after or during
the time the parties may be working with such confidential Information.
9. This Agreement may not be assigned without the prior written
consent of both parties hereto and shall be binding upon the parties hereto and
their successors and assigns.
10. Each party understands that if it breaches or threatens to breach
any of its duties under this Agreement, the party affected thereby may sustain
irreparable injuries and may not
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have adequate remedy through a lawsuit for monetary damages. Each party agrees
that in the event of such breach or threatened breach, the party affected
thereby may bring, without waiver or diminution of any other rights or remedies,
an action or actions for injunction and/or specific performance or other
equitable relief as necessary in any court of competent jurisdiction to restrain
such party from committing or continuing a breach of this Agreement.
11. Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall not invalidate the remaining provisions
hereof, and any such prohibition or enforceability in any jurisdiction shall not
invalidate or render unenforceable such provisions in any other jurisdiction.
12. This Agreement shall constitute the entire understanding of the
parties with respect to the Information to be disclosed. No modification,
amendment or waiver may be accomplished to the terms of this Agreement without
the written consent of both parties. This Agreement shall be construed and
enforced in accordance with the laws of the State of New Jersey.
13. Neither this Agreement nor the disclosure of Information to
Recipient by Phytotech hereunder shall be deemed by implication or otherwise
to vest in Recipient any rights in, to or under (a) any Information so
disclosed, or (b) any intellectual property rights of Phytotech
including those covering or related to such Information.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their authorized representatives on the date first above
written.
/s/ Xxxx Hagedaen /s/ Xxxxxxx X. Nechemie
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XXXXXXX X. NECHEMIE
PHYTOTECH, INC.
/s/ [Illegible] By: /s/ Xxxx Xxxxxx
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Xxxx Xxxxxx, Ph.D.,
President & CEO
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