Exhibit 10.16
CONFIDENTIALITY AGREEMENT
BIODELIVERY SCIENCES INTERNATIONAL, INC.
THIS AGREEMENT is made and entered into by and between BioDelivery
Sciences International, Inc. an Indiana corporation (hereinafter referred to and
defined as the "Company") and Xxxxxxx X. X'Xxxxxxx, MD, (hereinafter referred to
and defined as the "Second Party").
WHEREAS, the Company is in the business of developing and
commercializing proprietary and patented cochleate delivery technology;
WHEREAS, Second Party is an employee of the Company;
WHEREAS, Second Party recognizes that by virtue of Second Party's
relationship with the Company, Second Party has or will acquire a special
knowledge of the Company and the clients, accounts, business lists, prospects,
records, corporate policies, operational methods and techniques and other useful
information and trade secrets of the Company (hereinafter all collectively and
referred to and defined as "Confidential Information");
WHEREAS, Second Party acknowledges that the Company's Confidential
Information represents valuable, special and unique assets of the Company; and
WHEREAS, Second Party acknowledges that the Company's legitimate
business interests include the Confidential Information and the Company's
customer goodwill (hereinafter referred to and defined as "the Company's
Legitimate Business Interests") and that the Company's Legitimate Business
Interests would be harmed if Second Party would divulge or disclose the
Confidential Information to any third-party while the Second Party is a
stockholder of the Company, or at anytime thereafter.
NOW, THEREFORE, in consideration of the premises and the respective
covenants and agreements of the parties herein contained, and for additional
good and valuable consideration the receipt and sufficiency of which is
acknowledged by the parties, the parties mutually agree as follows:
1. CONFIRMATION OF RECITALS. The foregoing recitals are true and
correct and are hereby ratified and confirmed by the parties and are made an
integral part of this Agreement; as such, the recitals shall be used in any
construction of this Agreement, especially as it relates to the intent of the
parties.
2. CONFIDENTIAL INFORMATION. As used in this Agreement, "Confidential
Information" shall mean any information and data, oral, written, electronic or
other media relating to the business of the Company including, but not by way of
limitation, the following sources of supply, contractual relationships, other
advantageous relationships, sales, marketing and distribution strategies,
customers list and information, financial information and other data which are
the property of the Company and which the Company has not marked
"non-confidential".
2
3. PROTECTION OF CONFIDENTIAL INFORMATION. Second Party shall maintain,
on a confidential basis, all material and information designated as
"confidential" by the Company and not disclose nor divulge same to any third
party, during the term of Second Party's Employment Agreement with the Company
and for a period of two years thereafter, except as otherwise provided below:
a. With advance approval of the Company;
b. Information already in the possession of the third
party;
c. Information which is part of the public domain;
d. Information which is disclosed pursuant to a lawful
requirement or good faith obligation to a
governmental agency;
e. Information which was developed independently by the
Second Party; and
f. Information described by requirement of law.
4. INJUNCTION AND DAMAGES. Second Party agrees that this Agreement is
important, material and gravely affects the effective and successful conduct of
the business of the Company, and it also affects the Company's reputation and
goodwill, and is necessary to protect the Company's Legitimate Business
Interests. The Second Party further recognizes and agrees that the Company will
suffer irreparable injury in the event of Second Party's breach of any covenant
or agreement contained in this Agreement and cannot be compensated by monetary
damages alone. Accordingly, the Second Party agrees that, in addition to and
without limiting any other remedies or rights that the Company may have, the
Company shall have the right to obtain injunctive relief, both temporary and
permanent, against the Second Party from any court of competent jurisdiction. In
addition to said injunctive relief, the Company shall also be entitled to seek
damages, including, but not limited to, compensatory, incidental, consequential,
exemplary, and lost profits damages. Second Party agrees to pay the Company's
reasonable attorney's fees and costs for enforcement of this Agreement, if the
Second Party breaches this Agreement.
5. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Missouri.
6. SURVIVORS. This Agreement survives after Second Party is no longer a
stockholder in the Company.
7. MISCELLANEOUS. No change, addition, deletion, or amendment of this
Agreement shall be valid or binding upon Second Party or the Company unless in
writing and signed by Second Party and the Company. The rights of the Company
under this Agreement may be assigned; however, the covenants and agreements of
the Second Party pursuant to this Agreement cannot be assigned. The title of
this Agreement and the paragraph headings of this Agreement are not substantive
parts of this Agreement and shall not limit or restrict the Agreement in any
way. In construing this Agreement, neither of the parties hereto shall have any
term or provision of this Agreement construed against such party solely by
reason of such party having drafted
3
same as each provision of this Agreement is deemed by the parties to have been
jointly drafted by the Company and Second Party.
8. EXCLUDED ACTIVITIES. The Employment Agreement between Second Party
and the Company expressly authorizes and permits Second Party to serve in
employment and ownership relationships with other entities which are not
competitive with the Company ("Other Entities"). Neither this Agreement nor the
assignment or relinquishment set forth in this Agreement affect, in any fashion,
the rights of Second Party to serve in an employment, officer or ownership
relationship with Other Entities, nor does it affect or alter the ownership
rights of Other Entities provided Second Party complies with the terms of this
Agreement. This Agreement is not binding on or enforceable against the Other
Entities with which Second Party may be engaged in employment or other business
relationships.
9. SECOND PARTY ACKNOWLEDGMENT. The Second Party acknowledges that
Second Party has voluntarily and knowingly entered into this Agreement and that
this Agreement encompasses the full and complete agreement between the parties
with respect to the matters set forth herein.
Executed on this 1 day of April 2002.
BIODELIVERY SCIENCES INTERNATIONAL, INC. SECOND PARTY
By: /s/ Xxxxx X. XxXxxxx /s/ Xxxxxxx X. X'Xxxxxxx
--------------------------- -----------------------------------
Xxxxx X. XxXxxxx Its CFO Xxxxxxx X. X'Xxxxxxx
