CONFIDENTIAL DISCLOSURE AGREEMENT
Exhibit (d)(3)
THIS CONFIDENTIAL DISCLOSURE AGREEMENT (the
“Agreement”) is made and entered into as of the
sixth (6th) day of February, 2006 (the “Effective
Date”), by and between Sirtris Pharmaceuticals, Inc., a
Delaware corporation having offices at 000 Xxxxxxxx Xxxxx,
Xxxxx 000, Xxxxxxxxx, XX 00000 (“Sirtris”) and
SmithKline Xxxxxxx Corporation d/b/a GlaxoSmithKline, a
Pennsylvania corporation having offices at Five Xxxxx Drive,
P.O. Box 13398, Research Xxxxxxxx Xxxx, XX 00000
(“GSK”).
1. Definition of Confidential Information;
Purpose of Disclosure.
(a) As used herein, the term “GSK Confidential
Information” means any and all information that is
disclosed on or after the Effective Date by GSK or any of its
Affiliates to Sirtris relating to targets for therapeutic
applications in multiple categories, including but not limited
to, neurology, neurodegenerative disease/movement disorders,
metabolism, cardiovascular and ophthalmology.
(b) As used herein, the term “Sirtris Confidential
Information” means any and all information that is
disclosed on or after the Effective Date by Sirtris to
(i) GSK or (ii) any Affiliate of GSK as permitted
herein, relating to Sirtris’ modulation of sirtuin and
nicotinamide adenine dinucleotide biosynthesis/utilization drug
targets for therapeutic applications in multiple categories,
including but not limited to, neurology, neurodegenerative
disease/movement disorders, metabolism, cardiovascular and
ophthalmology. GSK Confidential Information and Sirtris
Confidential Information are sometimes hereinafter collectively
referred to as the “Confidential Information.”
(c) The Confidential Information is being disclosed between
the parties hereto for the purposes of sharing information on
targets for therapeutic applications in multiple categories,
including but not limited to, neurology, neurodegenerative
disease/movement disorders, metabolism, cardiovascular and
ophthalmology.
2. Excluded
Information. Confidential Information does
not include any portion of the Confidential Information of the
other party hereto which:
(a) at the time of disclosure is in the public domain;
(b) after disclosure hereunder enters the public domain,
except through breach of this Agreement by the recipient;
(c) the recipient can demonstrate by its written records
was in the recipient’s possession prior to the time of
disclosure by or on behalf of the disclosing party hereunder,
and was not acquired directly or indirectly from the disclosing
party;
(d) becomes available to the recipient from a third party
which, to the knowledge of the recipient, is not legally
prohibited from disclosing such Confidential Information; or
(e) the recipient can demonstrate by its written records
was developed by or for the recipient independently of the
disclosure of Confidential Information by the disclosing party
or its Affiliates.
3. Maintenance of Confidentiality; Nonuse
Obligations.
(a) The Confidential Information shall be kept strictly
confidential by the recipient and, except as otherwise permitted
herein, shall not be disclosed to any third party by the
recipient in any manner whatsoever, in whole or in part, without
first obtaining the disclosing party’s prior written
consent to such disclosure. The standard of care required of the
recipient in protecting the confidentiality of the disclosing
party’s Confidential Information shall be the same standard
of care that the recipient uses in protecting its own
confidential information of a similar nature, which shall be at
least a reasonable standard of care. The recipient may disclose
the disclosing party’s Confidential Information only to the
recipient’s officers, employees, agents or consultants on a
need-to-know basis, provided that the recipient will have
executed or shall execute appropriate written agreements with
its officers, employees, agents and applicable consultants
sufficient to enable the recipient to comply with all the
provisions of this Agreement.
(b) The Confidential Information shall not be used by the
recipient except as permitted herein, without first obtaining
the disclosing party’s prior written consent to such use or
without first entering into a separate written agreement
permitting such use duly executed by authorized representatives
of the parties hereto.
4. Notification of Mandatory
Disclosure.
(a) Notwithstanding any provision herein to the contrary,
in the event that any party receiving Confidential Information
hereafter becomes obligated by mandatory applicable law,
regulatory rule or judicial or administrative order to disclose
the Confidential Information or any portion thereof, to any
governmental authority or court, the recipient shall immediately
notify the disclosing party thereof of each such requirement and
identify the Confidential Information so required thereby, so
that the disclosing party may seek an appropriate protective
order or other remedy with respect to narrowing the scope of
such requirement
and/or waive
compliance by the recipient with the provisions of this
Agreement.
(b) If, in the absence of such protective order or other
remedy, the recipient is nonetheless required by mandatory
applicable law to disclose any part of the Confidential
Information which is disclosed to it hereunder to any
governmental authority or court, the recipient may disclose such
Confidential Information without liability hereunder,
provided, that, the recipient shall furnish only
such portion of the Confidential Information which is legally
required to be disclosed and only to the extent required by law.
5. Term of Obligations. All
obligations under this Agreement shall expire ten
(10) years after the Effective Date.
6. Ownership; No
Licenses. All GSK Confidential Information is
and shall remain the property of GSK. All Sirtris Confidential
Information is and shall remain the property of Sirtris. Neither
this Agreement nor any disclosure hereunder shall be deemed, by
implication, estoppel or otherwise, to vest in the recipient any
license or other ownership rights to the Confidential
Information or under any Confidential Information or inventions,
patents, know-how, trade secrets, trademarks or copyrights owned
or controlled by the disclosing party.
7. Return of Confidential
Information. Upon completion of the aforesaid
evaluation and in the absence of any further agreement between
the parties, GSK and Sirtris each shall cease all use and make
no further use of the Confidential Information and shall, upon
written request from the disclosing party, promptly destroy the
other party’s Confidential Information which is in tangible
form, except that Sirtris and GSK shall each be permitted to
retain one copy of the other party’s Confidential
Information so that any continuing obligations may be determined.
8. Affiliates. Notwithstanding
the obligations set forth herein regarding confidentiality and
use of Confidential Information, either party hereto may
disclose any Confidential Information which is disclosed to it
hereunder to any of its Affiliates, provided that such Affiliate
has agreed to be bound by the terms hereof.
9. No Publicity. No oral or
written release of any statement, information, advertisement,
press release or publicity matter having any reference to either
party, express or implied, shall be used by the other party or
on the other party’s behalf, unless and until such matter
shall have first been submitted to and received the approval in
writing of the party whose name is being used including the
status of negotiations between the parties.
10. Representation and
Warranty. Each party represents and warrants
to the other party that (a) it has all rights title and
ownership interest in and to the Confidential Information
and/or it
has the right to disclose the Confidential Information to the
other party; (b) by entering into this Agreement it is not
breaching any obligation or creating any conflict of interest;
and (c) it is not currently debarred, suspended or
otherwise excluded by any government agency from receiving
federal contracts.
11. No Other
Obligation. Nothing contained in this
Agreement shall be construed, by implication or otherwise, as an
obligation to enter into any further agreement relating to any
of the Confidential Information or as the grant of a license to
GSK or Sirtris to use the other’s Confidential Information
other than for evaluation purposes.
12. Notices. Notices
required to be sent to GSK under this Agreement shall be in
writing and addressed to Senior Vice President, R&D Legal
Operations and Biologicals, Xxx Xxxxxxxx Xxxxx,
X.X. Xxx 0000, Xxxxxxxxxxxx, XX
00000-0000;
all other communications directed to GSK shall be sent to the
attention of Xxxx X. Xxxxx, VP Scientific & Technology
Licensing, GlaxoSmithKline, Five Xxxxx Drive,
X.X. Xxx 00000, Xxxxxxxx Xxxxxxxx Xxxx,
0
XX 00000. Notices or other communications directed to Sirtris
shall be sent to the attention of President,
Sirtris Pharmaceuticals, Inc., 000 Xxxxxxxx Xxxxx,
Xxxxx 000, Xxxxxxxxx, XX 00000.
13. Remedies for
Breach. Both parties hereto agree that should
this Agreement be breached, money damages would be inadequate to
remedy any such breach. As a result, the non-breaching party
shall be entitled to seek, and a court of competent jurisdiction
may grant, specific performance and injunctive or other
equitable relief as a remedy for any breach of this Agreement.
Such remedy shall be in addition to all other remedies,
including money damages, available to a non-breaching party at
law or in equity.
14. Assignment. This
Agreement shall not be assigned by either party hereto without
the prior written consent of the other party hereto, which
consent may be withheld in either party’s sole discretion,
and any purported assignment without such consent shall be void;
provided, however, either party hereto may without such consent
assign this Agreement in connection with the sale or transfer of
all or substantially all of its business or in connection with a
merger or other consolidation with another entity.
15. Severability. If any provision
of this Agreement or the application thereof in any particular
circumstance is held illegal, invalid or unenforceable, such
illegality, invalidity or unenforceability shall not affect any
other provision hereof. This Agreement shall, in such
circumstances, be deemed modified to the extent necessary to
render enforceable the provisions hereof to the fullest extent
permitted by law.
16. Entire Agreement; Amendments;
Waiver. This Agreement contains the entire
understanding between the parties hereto with respect to the
subject matter contained herein and supersedes all prior written
or oral communications, negotiations, understandings or
agreements of any kind with respect to such subject matter. No
waiver, amendment or modification of this Agreement shall be
effective unless made or agreed to in a written agreement that
explicitly refers to this Agreement that is signed by authorized
representatives of both parties hereto. Failure by either party
hereto to enforce any rights under this Agreement shall not be
construed as a waiver of such rights nor shall a waiver by
either party hereto in one or more instances be construed as
constituting a continuing waiver or as a waiver in other
instances.
17. Governing Law;
Counterparts. This Agreement shall be
governed by and construed in accordance with the laws of the
Commonwealth of Massachusetts, without regard to principles of
conflicts of laws applicable in such jurisdiction. This
Agreement and any amendment hereto may be executed in
counterparts and all of such counterparts taken together shall
be deemed to constitute one and the same instrument. A facsimile
copy of this Agreement and any amendment hereto, including the
signature pages, will be deemed an original.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their duly authorized representatives as of the
Effective Date.
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Sirtris Pharmaceuticals, Inc.
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SmithKline Xxxxxxx Corporation d/b/a GlaxoSmithKline |
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By:
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/s/ Xxxxx
Xxxxxx
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By: |
/s/ Xxxx
X. Xxxxx
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| Name: Xxxxx Xxxxxx | Name: Xxxx X. Xxxxx | |||||
| Title: Chief Operating Officer |
Title: VP Scientific & Technology Licensing
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