EXHIBIT 5.1.4.4
REQUIRED AGREEMENT (SUPPLIERS)
This CONFIDENTIALITY AGREEMENT (this "Agreement) is made this ____ day
of ___________, 200_, by and between NEOSE TECHNOLOGIES, INC., a Delaware
corporation ("Neose") and ______________________________, a _________________
corporation ("Recipient").
BACKGROUND
Neose has developed and continues to develop patented technology and
related know-how, known as GlycoAdvance(TM), relating to methods and processes
for the glycosylation of recombinant proteins and glycoprotein remodeling
(collectively, the "Technology"). Pursuant to a Research, Development and
License Agreement dated December 19, 2001 (the "License Agreement"), Neose has
granted American Home Products Corporation, a Delaware corporation acting
through its Wyeth-Ayerst Laboratories Division ("Wyeth"), certain exclusive
worldwide rights under the Technology throughout the world including the right
to have certain products made by third parties. Wyeth desires to exercise such
have made rights by having Recipient manufacture certain products on behalf of
Wyeth. Wyeth, therefore, desires to disclose to Recipient confidential and
proprietary information, which is a part of the Technology and is considered
valuable by Neose. As a condition to Wyeth disclosing such highly confidential
and valuable proprietary information to Recipient, Recipient desires to enter
into this Agreement for Neose's benefit.
NOW, THEREFORE, in consideration of the foregoing premises and in
consideration of Wyeth disclosing Neose's confidential and proprietary
information to Recipient, intending to be legally bound hereby, Recipient agrees
as follows:
1. Definitions
(a) "Confidential Information" means any and all confidential or
proprietary information of Neose disclosed to Recipeint, including, without
limitation, all technical data, trade secrets or know-how, research, product
plans, products, service plans, services, customer lists and customers, markets,
software, developments, inventions, processes, formulas, technology, designs,
drawings, engineering, marketing, distribution and sales methods and systems,
sales and profit figures, finances and other business information related to
Neose. The fact that a given piece of information is marked or identified as
confidential or proprietary shall conclusively indicate that such information is
considered Confidential Information, but the failure to so mark information
shall not conclusively determine that such information was or was not considered
Confidential Information.
(b) "Neose Know-How" means any and all formulae, procedures, processes,
methods, designs, know-how, show-how, trade secrets, discoveries, inventions
(whether or not patentable), software and source code, programs, prototypes,
designs, techniques, methods, ideas, concepts, data, engineering and
manufacturing information, electronic control circuits, specifications,
diagrams, drawings, schematics, blueprints and parts lists and other proprietary
information, rights and works of authorship, whether or not reduced in writing,
controlled by Neose and relating to the Technology.
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(c) "Neose Patents" means all patents or patent applications (including
all corresponding foreign patents and patent applications, all divisions,
continuations, continuations-in-part, reissues, renewals, extensions or
additions to any such patents and patent applications) relating to the
Technology licensed by Neose to Wyeth under the License Agreement.
(d) "Neose Technology" means Neose Know-How and Neose Patents.
(e) "Person" means an individual, corporation, partnership, trust,
business trust, association, joint stock company, joint venture, syndicate, sole
proprietorship, unincorporated organization, government, governmental agency,
authority or instrumentality, or any other form of entity not specifically
listed in this Agreement.
(f) "Product" means (i) PSGL-Ig produced using the Neose Technology and
(ii) any other proteins with amino acid sequences that are greater than ***%
identical, or greater than ***% similar, to the *** of PSGL-Ig, and ***, and
contain *** produced using the Neose Technology.
(g) "PSGL-Ig" means the glycoprotein identified in, and with the
sequence and fucosylation pattern set forth in, Exhibit 1.32 to the License
Agreement.
(h) "Supply Agreement" means any contract (and any purchase order
issued thereunder) between Recipient and Wyeth covering Recipient's manufacture
and supply of Product to Wyeth.
(i) "Third Party" shall mean any Person other than Recipient, Neose or
Wyeth.
2. Non-Disclosure; Non-Use; Reasonable Care.
(a) Non-Disclosure. Without the prior written consent of an authorized
officer of Neose, Recipient shall not directly or indirectly disclose to any
Third Party any Confidential Information or Neose Know-How.
(b) Non-Use. Without the prior written consent of an authorized officer
of Neose, Recipient shall not directly or indirectly use Confidential
Information or the Neose Technology for its own benefit of the benefit of any
Third Party.
(c) Reasonable Care. Recipient shall take all reasonable measures to
protect the secrecy of, and avoid the unauthorized disclosure or use of,
Confidential Information and Neose Technology including: (i) exercise of the
highest degree of care that Recipient uses to protect Recipient's own
confidential and proprietary information of a similar nature; (ii) disclosing
either Confidential Information, Neose Know-How or both only to employees and
contractors of Recipient who have a need to know; and (iii) requiring anyone who
has access to either Confidential Information, Neose Know-How or both to sign or
have signed an agreement with provisions that are substantially similar to the
terms of this Agreement. Recipient shall notify Neose in writing of any
disclosure, misuse or misappropriation of any Confidential Information or Neose
Technology that may come to Recipient's attention.
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3. Acknowledgements. Recipient acknowledges and agrees that: (a) this Agreement
is necessary for the protection of the legitimate business interests of Neose;
(b) the execution of this Agreement by an authorized representative of Recipient
and delivery of this Agreement to Neose is a mandatory condition precedent to
Wyeth disclosing any Confidential Information and any information concerning the
Neose Technology to Recipient, without which Neose would not permit Wyeth to
disclose such information; (c) neither Neose nor Wyeth has granted to Recipient
any rights under the Neose Technology in any manner; and (d) because of the
unique nature of Confidential Information and the Neose Technology and is broad
applicability to the manufacture of glycoproteins, Neose will not have an
adequate remedy at law if Recipient breaches any term of this Agreement.
4. Return of Materials. Upon the earlier of termination of Wyeth's licenses to
the Neose Technology under the License Agreement and termination of the Supply
Agreement, Recipient shall: (a) discontinue all use of Confidential Information
and the Neose Technology; (b) destroy any and all items containing Confidential
Information and the Neose Technology in its possession; and (c) certify in
writing to Neose, within ten (10) days after Neose's request, that Recipient has
taken all actions described in this Section 4.
5. Intellectual Property.
(a) Ownership Rights. All right, title and interest under patent,
copyright, trade secret and trademark law and any other intellectual property or
other law (collectively, "Ownership Rights"), in and to the Confidential
Information and the Neose Technology shall remain at all times with Neose. Any
and all Ownership Rights to developments, discoveries, inventions, additions,
amendments, modifications, ideas, processes, methods, compositions, formulae,
techniques, information and data, whether or not patentable, relating to the
Neose Technology or any methods and processes of carbohydraft synthesis made,
conceived, or reduced to practice, by Neose, Wyeth or Recipient any combination
of them ("Neose Improvements") shall be owned by Neose and shall be deemed to be
part of the Neose Technology for all purposes.
(b) Assignment. To the extent that Recipient may retain any Ownership
Rights in any Neose Improvements, Recipient hereby irrevocably assigns and
transfers to Neose any and all such Ownership Rights, in perpetuity or for the
longest period otherwise permitted by law, without the necessity of further
consideration, and Neose shall be entitled to receive and hold in its own name
all such Ownership Rights. With respect to any Ownership Rights that Recipient
may assign and transfer to Neose under this Section 5(b), at the request of
Neose, and at Neose's expense, either before or after termination of this
Agreement, Recipient shall assist Neose in acquiring and maintaining patent,
copyright, tradesecret and trademark protection upon, and confirming Neose's
title in and to, any such respective Ownership Rights. Recipient's assistance
shall include, but shall not be limited to, signing all applications, and any
other documents and instruments for patent, copyright and any other proprietary
rights, cooperating in legal proceedings, and taking any other actions
considered necessary or desirable by Neose. For the purpose of facilitating the
above assignment, Recipient agrees that any and all employees and contractors
employed or engaged by Recipient and providing any service in connection with
the Project, prior to providing such service, shall have agreed in writing to
covenants consistent with Recipient's covenants set forth in this Section 5(b).
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6. Exceptions. The non-disclosure obligations with respect to Confidential
Information set forth in Section 2(a) shall not apply to any information that:
(a) at the time of disclosure by or on behalf of Wyeth or Neose to Recipient is
in, or after disclosure by or on behalf of Wyeth or Neose becomes part of, the
public domain through no improper act on the part of Recipient or on the part of
any of Recipient's employees, independent contractors, advisors or consultants;
(b) is disclosed, published or disseminated by Neose without any confidentiality
constraints; (c) was in Recipient's possession free of any obligation of
non-disclosure or non-use at the time of disclosure to Recipient, as shown by
written evidence; (d) Recipient receives from a Third Party free of any
obligation of non-disclosure or non-use and such Third Party had no obligation
to Neose not to disclose such information; (e) was developed by Recipient
independent of information received hereunder, as shown by its written records;
or (f) subject to Section 7, is required to be disclosed by law or pursuant to
legal, judicial or administrative process.
7. Notice of Required Disclosure. If Recipient is required by judicial or
administrative process to disclose any Confidential Information, then Recipient
shall promptly notify Neose and, before disclosing such Confidential
Information, allow Neose a reasonable time to oppose such process.
8. Successors; Assignment. This Agreement shall be binding upon Recipient and
Recipient's successors and assigns and inure to the benefit of Neose and its
successors and assigns. Recipient may not assign its rights or delegate its
obligations under this Agreement, in whole or in part, except (i) to the extent
permitted by the License Agreement, and (ii) with the prior written consent of
Neose, which consent shall not be unreasonably withheld. Neose may assign this
Agreement without Recipient's prior written consent.
9. Governing Law. This Agreement shall be governed by the laws of the
Commonwealth of Pennsylvania without regarding to any conflict of law rules of
any jurisdiction.
10. Remedies. In addition to any other remedies that may be available, in law,
in equity or otherwise, Neose shall be entitled to obtain injunctive relief to
enforce the provisions of this Agreement without necessity of posting bond.
11. Entire Agreement. This Agreement contains the entire agreement and
understanding relating to the subject matter hereof and merges and supersedes
all prior discussions, agreements and understandings. This Agreement may not be
changed or modified, except in a writing signed by both Neose and Recipient. The
failure or delay of Neose to exercise any right under this Agreement shall not
be deemed a waiver of any rights under this Agreement.
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IN WITNESS WHEREOF, Recipient has caused its authorized representative
to execute this Agreement on the date first written above.
NEOSE TECHNOLOGIES, INC. [INSERT ENTITY NAME]
By: By:
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Name Name:
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Title: Title
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UNACCEPTABLE SUBLICENSEES
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