[EXHIBIT 99.1.5]
CONFIDENTIAL DISCLOSURE AGREEMENT
This CONFIDENTIAL DISCLOSURE AGREEMENT (the "Agreement"), dated as of
March 4, 1996, between Warner-Lambert Company, ("Warner-Lambert"), and
Pfizer Inc. (the "Receiving Party"),
WITNESSETH:
WHEREAS, Warner-Lambert possesses certain valuable and confidential
information relating to its pharmaceutical business, including, without
limitation, its product atorvastatin (the "Information"); and
WHEREAS, Warner-Lambert wishes to explore the possibility of entering
into certain commercial arrangements with the Receiving Party (the
"Program") and the Receiving Party wishes to have access to the Information
to aid the Receiving Party in reaching a decision concerning the Program;
NOW, THEREFORE, in consideration of the mutual promises contained
herein, Warner-Lambert and the Receiving Party hereby agree as follows:
1. Warner-Lambert shall disclose such of the Information as it deems
necessary to enable the Receiving Party to evaluate the Program and the
Receiving Party shall accept and hold the Information in confidence in
accordance with the provisions of Paragraph 2 hereof.
2. Without the prior written consent of Warner-Lambert, the Receiving
Party shall neither disclose to any third party (except its consultants
pursuant to the terms set forth below) any or all of the Information
disclosed by Warner-Lambert hereunder, nor permit any such third party
(except such consultants) to have access to such Information, nor use such
Information for any purpose other than to evaluate the Information as it
relates to the Program. In addition, the Receiving Party shall only
disclose the Information to those of its employees and consultants who
shall reasonably need to know the Information in order to evaluate such
Information or Program or to make decisions or render advice in connection
therewith and who shall be informed of the existence of this Agreement and
shall agree to be bound by the terms hereof. Each of the Receiving Party's
consultants shall be bound in writing by a confidential disclosure
agreement consistent with the terms hereof prior to its receipt of
Information. The Receiving Party undertakes to ensure strict compliance
with the terms of such confidential disclosure agreements, and shall
exercise all of its rights thereunder, including, without limitation, the
pursuit of injunctive relief, to ensure the same. Furthermore, upon
Warner-Lambert's request, the Receiving Party shall assign to
Warner-Lambert its rights under any such confidential disclosure agreement.
However, the aforesaid obligations assumed by the Receiving Party hereunder
shall not apply to any Information which falls within any of the following
categories:
(a) Information which is in the public domain at the time of
disclosure hereunder or which subsequently has come within the
public domain through no fault of or action by the Receiving
Party; and
(b) Information which is in the possession of the Receiving Party at
the time of disclosure by Warner-Lambert or which is
independently discovered, after the date hereof, by the Receiving
Party without the aid, application or use of the Information, in
each such case as evidenced by written records; and
(c) Information which is obtained, after the date hereof, by the
Receiving Party from any third party which is lawfully in
possession of such Information and not in violation of any
contractual or legal obligation with respect to such Information.
3. This Agreement, including the confidentiality and limited use
obligations hereunder, shall remain in effect for a period of seven (7)
years from the date of disclosure of the Information, provided that the
expiration of the term of this Agreement shall not release the Receiving
Party from any obligation of confidentiality or nonuse which may arise from
applicable law.
4. Each of the parties agrees that it shall not disclose to any third
party the existence or subject matter hereof to the maximum extent
permitted by law during the term described in Paragraph 3 hereof. The
Receiving Party shall return to Warner-Lambert, upon request, any and all
written documents and samples of any products provided by Warner-Lambert
hereunder.
5. No right of license, either express or implied, with respect to the
Information is granted hereunder by Warner-Lambert to the Receiving Party.
The disclosure of the Information by Warner-Lambert to the Receiving Party
shall not result in any obligation on the part of either party to enter
into any future agreement relating to the Information or to undertake any
other obligation not set forth in a written agreement signed by the parties
hereto.
6. The Receiving Party represents and warrants to Warner-Lambert that it
has the necessary corporate power to enter into and perform its obligations
under this Agreement and all necessary corporate action required to
authorize the execution and delivery of this Agreement and the performance
of the Receiving Party's obligations hereunder has been taken.
7. The Receiving Party acknowledges and agrees that any remedies at law
for a breach or threatened breach of any of the provisions of this
Agreement would be inadequate and, in recognition of that fact, agrees
that, in the event of a breach or threatened breach by it of the provisions
of this Agreement, in addition to any remedies at law, Warner-Lambert
without posting any bond shall be entitled to obtain equitable relief in
the form of specific performance, a temporary restraining order, a
temporary or permanent injunction or any other equitable remedy which may
then be available.
8. The Receiving Party hereby agrees to the terms set forth in Attachment
A to this Agreement, and such terms are hereby incorporated into and made a
part of this Agreement.
9. This Agreement contains all the representations and agreements between
the parties relating to the Information and any representation, promise or
condition concerning the same which is not contained herein or in a
superseding written agreement referring to this Agreement shall not be
binding on either party hereto.
10. This Agreement shall be governed by and construed in accordance with
the law of the State of New York other than those provisions governing
conflicts of law and any dispute arising out of or in connection with this
Agreement, including its existence, validity or termination, shall be
governed by and resolved in accordance with the laws of the State of New
York, other than those provisions governing conflicts of law.
IN WITNESS WHEREOF, the Receiving Party and Warner-Lambert have caused
this Agreement to be executed by their respective duly authorized
representatives as of the date first above written.
PFIZER INC. WARNER-LAMBERT COMPANY
By: /s/ John Niblack By: /s/ R. B. Van Duyne
---------------------------- --------------------------------
Title: Executive Vice President Title: Vice President, Business
Development and Licensing
ATTACHMENT A
1. Restriction on Acquisitions of Voting Securities. Except as provided
in Sections 4 and 5 below, the Receiving Party covenants and agrees with
Warner-Lambert that, from the date hereof until the date (the "Standstill
Termination Date") which is the later of:
(i) the last to occur of
(a) one (1) year after termination of discussions between
Warner-Lambert and the Receiving Party with respect to
atorvastatin, or
(b) the first to occur of (1) the date the United States New
Drug Application for atorvastatin submitted by Warner-Lambert is
granted final approval by the United States Food and Drug
Administration permitting the immediate commencement of
commercial distribution of the product or (2) two (2) years after
the date of this Agreement, or
(ii) in the event that Warner-Lambert and the Receiving Party enter
into an agreement with respect to atorvastatin, five years after the
termination of such agreement,
neither the Receiving Party nor any of its Affiliates (as defined below)
will, except with the express written consent of Warner-Lambert and then
only to the extent stated in such written consent, acquire or agree to
acquire or make any proposal to acquire, directly or indirectly, the
beneficial ownership of any common stock, equity securities or other
securities having voting power with respect to the election of directors of
Warner-Lambert ("Voting Equity"), or any other securities convertible into
Voting Equity or any options, warrants or other rights to acquire Voting
Equity (such convertible securities, options, warrants or other rights,
together with Voting Equities, being hereinafter called "Voting
Securities") of Warner-Lambert or its Affiliates. For purposes of this
Agreement, "Affiliates" shall mean any corporation or entity controlling,
controlled by, or under common control with the party in question. As used
herein the term control means possession of the power to direct, or cause
the direction of, the management and policies of a corporation or entity by
reason of any ownership interest therein.
2. Restrictions on Solicitations of Proxies. Except as provided in
Sections 4 and 5 below, the Receiving Party covenants and agrees that, from
the date hereof until the Standstill Termination Date, neither it nor any
of its Affiliates will, except with the express written consent of
Warner-Lambert and then only to the extent stated in such written consent,
make or in any way participate, directly or indirectly, in any
"solicitation" of "proxies" (as such terms are defined in Regulation 14A
under the Securities Exchange Act of 1934 (the "Exchange Act")) to vote or
seek to advise or influence any person with respect to the voting of any
Voting Securities of Warner-Lambert or its Affiliates.
3. Other Restrictions. Except as provided in Sections 4 and 5 below, the
Receiving Party covenants and agrees that, from the date hereof until the
Standstill Termination Date neither it nor any of its Affiliates shall (i)
seek to have Warner-Lambert waive, amend or modify any of the restrictions
contained in this Agreement or the Certificate of Incorporation or the
By-laws of Warner-Lambert, (ii) make any Acquisition Proposal (as defined
below) or proposal with respect to a Business Combination (as defined
below), joint venture, or any other extraordinary business arrangement,
including, but not limited to, a business arrangement which could result
in a change of control of Warner-Lambert, in each case in respect of
Warner-Lambert or any of its Affiliates, (iii) take any initiatives
involving Warner-Lambert that would otherwise require Warner-Lambert to
make a public announcement or make any public comment or proposal with
respect to any Acquisition Proposal or Business Combination, (iv) join a
partnership, limited partnership, syndicate or other group for the purpose
of acquiring, holding, voting or disposing of Voting Securities of
Warner-Lambert or otherwise become a "person" within the meaning of
Section 13(d)(3) of the Exchange Act with respect to any Voting Securities
of Warner-Lambert or its Affiliates, (v) enter into any discussions,
negotiations, arrangements or understandings with any third party with
respect to any of the foregoing, (vi) knowingly advise, assist or encourage
any third party in connection with any of the foregoing; or (vii) otherwise
seek to control or influence Warner-Lambert or its management or Board of
Directors.
"Acquisition Proposal" shall mean any tender offer or exchange offer
or proposal to Warner-Lambert (including, without limitation, any proposal
or offer to stockholders of Warner-Lambert) with respect to a Business
Combination or involving the purchase of 20% or more of the outstanding
Voting Securities of Warner-Lambert.
"Business Combination" shall mean (a) a merger, consolidation,
acquisition, scheme or other analogous arrangement in which Warner-Lambert
is a constituent corporation or party and pursuant to which Voting
Securities of Warner-Lambert are or may be exchanged for cash, securities
or other property or (b) a sale of all or substantially all of the assets
of Warner-Lambert and its Affiliates; provided that neither (i) a
transaction in which the beneficial ownership of the capital stock of
Warner-Lambert immediately after the consummation of such transaction is
substantially the same as the beneficial ownership of Warner-Lambert's
capital stock immediately prior to the consummation thereof nor (ii) a
merger, consolidation or other reorganization in which Warner-Lambert is
the surviving corporation, in which substantially all the shares of
Warner-Lambert capital stock outstanding immediately prior to the
consummation of such merger remain outstanding immediately after the
consummation thereof and the only change in the capital stock of
Warner-Lambert resulting from such merger is the issuance of shares of
capital stock pursuant thereto which, following such issuance, do not
represent more than 20% of Warner-Lambert's Voting Securities shall be
deemed a Business Combination.
4. Termination. If (a) a third party independently or in concert with
others commences or makes an Acquisition Proposal, and such third party is
the acquiring party, or if Warner-Lambert solicits a third party offer for
an Acquisition Proposal or a Business Combination, and such third party is
the acquiring party, or (b) Warner-Lambert enters into an agreement with a
third party with respect to an Acquisition Proposal or a Business
Combination, and such third party is the acquiring party, then
Warner-Lambert shall be deemed to have relinquished its right to enforce
the restrictions on the Receiving Party and its Affiliates set forth in
Sections 1, 2 and 3 herein and any claim for damages at law based on
actions of the Receiving Party or its Affiliates inconsistent with such
restrictions while such rights are relinquished; provided that, if any
tender offer or exchange offer or any Acquisition Proposal or Business
Combination made by the Receiving Party or any of its Affiliates (which,
but for the foregoing provisions of this Section 4, would have been
inconsistent with the restrictions set forth in Sections 1, 2 and 3 herein)
shall have lapsed or been terminated or withdrawn, Warner-Lambert's right
to enforce the restrictions on acquisitions set forth in Sections 1, 2 and
3 herein shall immediately be reinstated; and provided further that neither
the Receiving Party nor any Affiliate of the Receiving Party shall be
required to dispose of or be prevented from beneficially owning any Voting
Securities or any other property rights relating to Voting Securities of
Warner-Lambert which the Receiving Party or its Affiliate acquired or
contracted to acquire during the period of such relinquishment and prior to
such reinstatement.
5. Permitted Investment. Notwithstanding the foregoing, the
proscriptions set forth in this Agreement shall not apply to (i) passive
investments by the Receiving Party or any Affiliate solely for the purpose
of cash or money management or by an affiliated pension or employee benefit
plan or trust or to indirect interests in portfolio securities held by an
investment company registered under the Investment Company Act of 1940 or
to interests in securities comprising part of a broad based, publicly
traded market basket or index of stock approved for such a plan or trust in
which such plan or trust invests, so long as such interest does not, in the
aggregate, exceed 1/2 of 1% of Warner-Lambert's outstanding Voting
Securities.
6. Indemnification. The Receiving Party hereby agrees to indemnify and
hold harmless Warner-Lambert from and against any costs (including legal
fees) of whatsoever nature arising directly or indirectly out of a breach
of the obligations of the Receiving Party contained in this Attachment A.