CONFIDENTIAL DISCLOSURE AGREEMENT
Exhibit 99(d)(2)
THIS CONFIDENTIAL DISCLOSURE AGREEMENT (the “Agreement”) is made and entered into as of the
18th day of October, 2005 (the “Effective Date”), by and between PRAECIS PHARMACEUTICALS
INCORPORATED, a Delaware corporation having offices at 000 Xxxxxx Xxxxxx, Xxxxxxx, XX
00000(“Praecis”) and SmithKline Xxxxxxx Corporation d/b/a GlaxoSmithKline, a Pennsylvania
corporation having offices at 000 Xxxxxxxxx Xxxx, Xxxx xx Xxxxxxx, 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 Praecis
relating to research and development activities of GSK and business strategies including, but not
limited to, the Center of Excellence for External Drug Discovery.
(b) As used herein, the term “Praecis Confidential Information” means any and all information
that is disclosed on or after the Effective Date by Praecis to (i) GSK or (ii) any affiliate of GSK
as permitted herein, relating to Praecis’ proprietary Direct Select™ drug discovery technology or
its proprietary S1P research program. GSK Confidential Information and Praecis 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 evaluation and discussion relating to potential business relationship relating to one
or both of Praecis’ proprietary programs identified in Section 1(b) hereof.
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;
(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 receiving party 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 receiving party 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
receiving party may disclose such Confidential Information without liability hereunder,
provided, that, the receiving party shall furnish only such portion of the
Confidential Information which is legally required to be disclosed and only to the extent required
by law.
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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 Praecis Confidential Information is and shall remain the property of Praecis.
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 Praecis each shall cease all use
and make no further use of the Confidential Information and shall, upon written request from the
disclosing party, promptly return to the other party all of the Confidential Information which is
in tangible form, except that Praecis 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.
10. 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 Praecis to use the other’s
Confidential Information other than for evaluation purposes.
11. 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 Xxxxxxxx, GlaxoSmithKline, 000 Xxxxxxxxx Xxxx, Xxxx xx Xxxxxxx, XX 00000.
Notices or other communications directed to Praecis shall be sent to the attention of Vice
President, Legal, 000 Xxxxxx Xxxxxx, Xxxxxxx, XX 00000; all other communications directed to
Praecis shall be sent to the attention of Vice President, Business Development and Government
Affairs, 000 Xxxxxx Xxxxxx, Xxxxxxx, XX 00000.
12. 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
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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.
13. 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.
14. 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.
15. 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.
16. 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.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly
authorized representatives as of the Effective Date.
PRAECIS PHARMACEUTICALS INCORPORATED | SMITHKLINE XXXXXXX CORPORATION doing business as GlaxoSmithKline |
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By: | /s/ Xxxx Xxxx XxXxxx | By: | /s/ Xxxx X. Xxxxxxxx | |||||||||||
Title: | Vice President, Legal | Title: | Director, CEEDD | |||||||||||
Date: October 25, 2005 | Date: Nov. 10, 2005 |
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