EXHIBIT 5
MUTUAL NON-DISCLOSURE AGREEMENT
Each undersigned party (the "Receiving Party") understands that the other
party (the "Disclosing Party") has disclosed or may disclose information
relating to the Disclosing Party's business particularly relating to uniform
informer libraries, chemi-informatic tools and the nature of chemical
libraries (including, without limitation, names and expertise of employees and
consultants, know-how, formulas, processes, ideas, inventions (whether
patentable or not), schematics, computer programs, software code, algorithms,
development tools, manufacturing capability or processes, chemical routes,
chemical structures, relationships with other businesses, business plans, and
other technical, business, financial, customer and product development plans,
forecasts, strategies and information), which to the extent previously,
presently, or subsequently disclosed to the Receiving Party is hereinafter
referred to as "Proprietary Information" of the Disclosing Party. Proprietary
Information also includes any information which the Disclosing Party has
received from a third party which the Disclosing Party is obligated to treat
as confidential or proprietary.
Notwithstanding the foregoing, nothing will be considered "Proprietary
Information" of the Disclosing Party unless either (1) it is first disclosed
in tangible form and is conspicuously marked "Confidential," "Proprietary" or
the like or (2) it is first disclosed in non-tangible form and orally
identified as confidential at the time of disclosure and is summarized in
tangible form conspicuously marked "Confidential" within thirty (30) days of
the original disclosure.
In consideration of and solely for the purpose of the parties' discussions
regarding a possible business transaction and any access the Receiving Party
may have to Proprietary Information of the Disclosing Party, each party (as
the Receiving Party) hereby agrees as follows:
1. Non-Disclosure and Non-Use Obligations. The Receiving Party agrees (i)
to hold the Disclosing Party's Proprietary Information in strict confidence
and to take all reasonable precautions to protect such Proprietary
Information (including, without limitation, all precautions the Receiving
Party employs with respect to its most confidential materials), (ii) not to
divulge any such Proprietary Information or any information derived
therefrom to any third person (except consultants or agents, subject to the
conditions stated below), (iii) not to make any use whatsoever at any time
of such Proprietary Information except to evaluate internally whether to
enter into a proposed business transaction with the Disclosing Party
without the prior written permission of the disclosing party, (iv) not to
remove or export from the United States or re-export any such Proprietary
Information or any direct product thereof except in compliance with all
licenses and approvals required under applicable export laws and
regulations, including without limitation, those of the U.S. Department of
Commerce, and (v) not to copy or reverse engineer any such Proprietary
Information. Any employee, consultant or agent given access to any such
Proprietary Information must have a legitimate "need to know" and shall be
similarly bound in writing. The parties shall be entitled to exchange
Proprietary Information under the terms of this Agreement for a period not
to exceed two (2) years from the date hereof, unless otherwise extended by
mutual written agreement of the parties or incorporated into a separate
agreement. Without granting any right or license, the Disclosing Party
agrees that the foregoing clauses (i), (ii), (iii) and (v) shall not apply
with respect to all obligations after five (5) years following the
disclosure thereof or any information that the Receiving Party can document
(i) is or (through no improper action or inaction by the Receiving Party or
any agent, consultant or employee) becomes generally known to the public,
(ii) was in its possession or the possession of an affiliate or consultant
or known by it prior to receipt from the Disclosing Party, (iii) was
rightfully disclosed to it, an affiliate or a consultant by a third party
without restriction, or (iv) was independently developed without use of any
Proprietary Information of the Disclosing Party by employees of the
Receiving Party who can be demonstrated to have had no access to such
information. The Receiving Party may make disclosures required by court
order provided the Receiving Party uses diligent efforts to limit
disclosure and to obtain confidential treatment or a protective order and
has allowed the Disclosing Party to participate in the proceeding.
5-1
2. Patent or Copyright Infringement. Nothing in this Agreement is
intended to grant any rights under any patent or copyright of the
Disclosing Party, nor shall this Agreement grant the Receiving Party any
rights in or to the Disclosing Party's Proprietary Information, except the
limited right to review such Proprietary Information solely for the purpose
of evaluating a possible business transaction.
3. Return of Materials. Immediately upon (i) the decision by either party
not to enter into a relationship as a result of the exchange of information
hereunder, or (ii) a request by the Disclosing Party at any time, the
Receiving Party will turn over to the Disclosing Party all Proprietary
Information of the Disclosing Party and all documents or media containing
any such Proprietary Information and any and all copies or extracts or
derivatives thereof to the extent it is requested by either party in
writing, except that a single copy may be retained for legal archival
purposes, subject to protection and non-disclosure in accordance with the
term of this Agreement. The Receiving Party understands that nothing herein
(i) requires the disclosure of any Proprietary Information of the
Disclosing Party, which shall be disclosed if at all solely at the option
of the Disclosing Party, or (ii) requires the Disclosing Party to proceed
with any proposed transaction or relationship in connection with which
Proprietary Information may be disclosed.
4. No Publicity. Except to the extent required by law, neither party
shall disclose the existence or subject matter of the negotiations or
business relationship contemplated by this Agreement.
5. Securities Law Considerations. Each party is aware, and will advise
its employees, consultants and agents who are informed of the matters that
are the subject of this Agreement, of the restrictions imposed by the
United States securities laws on the purchase and sale of securities by any
person who has received material, non-public information from the issuer of
such securities and on the communication of such information to any other
person when if is reasonably foreseeable that such other person is likely
to purchase or sell such securities in reliance upon such information.
6. Miscellaneous. The Receiving Party acknowledges and agrees that due to
the unique nature of the Disclosing Party's Proprietary Information, there
can be no adequate remedy at law for any breach of its obligations
hereunder, that any such breach may allow the Receiving Party or third
parties to unfairly compete with the Disclosing Party resulting in
irreparable harm to the Disclosing Party, and therefore, that upon any such
breach or any threat thereof, the Disclosing Party may seek appropriate
equitable relief (without the need to post bond or other security) in
addition to whatever remedies it might have at law. The Receiving Party
will notify the Disclosing Party in writing immediately upon the occurrence
of any such unauthorized release or other breach of which it is aware. In
the event that any of the provisions of this Agreement shall be held by a
court or other tribunal of competent jurisdiction to be to any extent
illegal, invalid or unenforceable, such provisions shall be limited or
eliminated to the minimum extent necessary so that this Agreement shall
otherwise remain in full force and effect. This Agreement shall be governed
by and construed in accordance with the laws of the State of California,
without regard to principles of conflicts of law. The parties agree that
any dispute regarding the interpretation or validity of this Agreement
shall be subject to the exclusive jurisdiction of the state and federal
courts in and for the County of San Diego, California, and each party
hereby agrees to submit to the personal and exclusive jurisdiction and
venue of such courts. This Agreement supersedes all prior discussions and
writings and constitutes the entire agreement between the parties with
respect to the subject matter hereof. This Agreement may not be amended
except in on express writing signed by officers of both parties. No waiver
or modification of this Agreement will be binding upon either party unless
made in writing and signed by a duly authorized representative of such
party and no failure or delay in enforcing any right will be deemed a
waiver.
Each party warrants to the other that it is duly authorized to enter into
this Agreement and that the terms of this Agreement are not inconsistent with
any of its respective outstanding contractual obligations. The execution and
performance of this Agreement does not obligate the parties to enter into any
other agreement or to perform any obligations other than as specified herein.
5-2
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year set forth below.
Date: Xxxxx 00, 0000 Xxxxxxxxx, Inc., a Delaware general
partnership
/s/ Xxxxxxx Xxxxx, Xx., Ph.D.
By: _________________________________
Xxxxxxx Xxxxx, Xx., Ph.D.
Its: President and Chief Executive
Officer
DuPont Pharmaceuticals Company, a
Delaware general partnership
/s/ Xxxxx X. Block, M.D.
By: _________________________________
Xxxxx X. Block, M.D.
Its: Vice President, Product
Planning
5-3
