Exhibit 10.3
CONFIDENTIALITY AGREEMENT
THIS IS A CONFIDENTIALITY AGREEMENT (the "Agreement"), dated as of
August 24, 2000 (the "Effective Date"), among West Pharmaceutical Services,
Inc., a Pennsylvania corporation, ("West") with offices at 101 Gordon Drive,
Lionville, PA, 19341, and its wholly owned subsidiaries West Pharmaceutical
Services Drug Delivery & Clinical Research Centre Ltd., a corporation organized
under the laws of England and Wales, ("West/Nottingham") with offices at Albert
Einstein Centre, Highfields Science Park, Nottingham, NG7 2TN, United Kingdom,
and West Pharmaceutical Services Lakewood, Inc., a Delaware corporation with
offices at 1200 Paco Way, Lakewood, New Jersey 08701 ("West/Lakewood");
Paramount Capital Investments, LLC, a New York limited liability corporation,
("Paramount") with offices at 787 Seventh Avenue, New York, New York 10019, and
Innovative Drug Delivery Systems, Inc., a Delaware corporation, ("IDDS") with
offices at 787 Seventh Avenue, New York, New York 10019. Each Party hereto may
be referred to herein as a "Party" or collectively as "Parties."
Background
West (directly and through its subsidiaries) is engaged in, among other
things, the research and development of novel means of delivering pharmaceutical
compounds using its patented and proprietary drug-delivery technology. IDDS
desires to conduct and fund further research and development activities with
respect to West's technology with a view toward commercialization of certain
identified products for the treatment of pain in humans and animals (the
"Projects"). To this end IDDS, West and West/Nottingham have entered into a
License Agreement (the "License Agreement") dated as of the Effective Date, and
the Parties intend to enter into other agreements in the future relating to the
Projects.
In connection with these agreements and the activities conducted under
them, it will be necessary for the parties to disclose to the others certain
confidential and proprietary information. The parties wish to enter into this
Agreement to govern the treatment of Confidential Information (as defined
herein) relating to the Projects.
Agreement
Accordingly, intending to be legally bound, the Parties agree as
follows:
1. As used in this Agreement, the term "Confidential Information" means
information that any Party desires to maintain as confidential or secret,
which is supplied or provided to any other Party, including without
limitation scientific, clinical, regulatory, marketing, financial and
commercial information, data or results, whether communicated in writing or
by other means (including orally or by visual observation of a Party's
facilities or processes, if confirmed in writing within 30 days).
Confidential Information shall include without limitation any confidential
portions of Background IP and Program IP (as such terms are defined in the
License Agreement).
2. Each Party will keep all Confidential Information confidential and use
Confidential Information only for the purposes of the Projects and not
for the benefit of any third party. Without the prior written consent
of the disclosing Party, no Party will analyze, have analyzed or
otherwise attempt to determine the composition or structure of any
samples, nor disclose any Confidential Information to any third party
other than its directors, officers and employees who need to know the
Confidential Information for the purpose stated above; provided, that a
receiving Party may disclose Confidential Information to third parties
where (a) it is necessary and appropriate to further the purposes of
the Projects and the development, commercialization and sale of
products to the benefit of the disclosing Party, and (b) before such
disclosure such third party enters into a written agreement which
provides that such Confidential Information shall be held confidential
and not disclosed or used for any purpose other than as set forth
herein, such written agreement to contain terms and conditions no less
stringent than those of this Agreement.
3. All written disclosures of Confidential Information considered
confidential by the disclosing Party shall bear the notation
"Confidential." All non-written disclosures of Confidential Information
shall be confirmed by the disclosing Party in writing as being
confidential within thirty (30) days following the non-written
disclosure. The written confirmation shall identify the particular
Confidential Information, state that it is considered confidential, and
shall be addressed to the persons who received such non-written
disclosures.
4. Each person who receives Confidential Information shall be informed that
the Confidential Information is considered confidential and shall have
agreed to be bound by the terms and conditions of this Agreement. Each
Party shall ensure that Confidential Information is not used or
disclosed except as permitted by this Agreement and shall be
responsible for any breach of this Agreement by its directors, officers
or employees.
5. The receiving Party shall take all reasonable steps, including, but not
limited to, those steps taken to protect its own information, data or
other tangible or intangible property that it regards as proprietary or
confidential, to insure that the Confidential Information is not
disclosed or duplicated for the use of any third party. The receiving
Party shall also take all reasonable steps to prevent its employees, or
any others having access to the Confidential Information, from
disclosing or making unauthorized use of any Confidential Information,
or from committing any acts or omissions that may result in a violation
of this Agreement. The receiving Party shall indemnify the disclosing
Party for any breach of this Agreement by its employees or the
employees of its affiliates or sublicensees.
6. All Confidential Information shall remain the property of the disclosing
Party, except for analysis, studies or other documents prepared by or
for the receiving Party. Upon the written request of the disclosing
Party (a) all tangible Confidential Information (including all copies
thereof), except analyses, studies and other documents prepared by or
for the benefit of the receiving Party, shall be promptly returned to
the disclosing Party, and (b) all analyses, studies and other documents
prepared by or for the benefit of the receiving Party (including all
copies thereof) which are within the definition of Confidential
Information shall be destroyed; provided, however, that the receiving
Party may retain one copy of such Confidential Information for its
records to ensure compliance hereunder.
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7. The obligations of confidentiality and non-use set forth in this Agreement
shall not apply to any portion of the Confidential Information which:
7.1. is or becomes available to the general public other than through the
act or default of any Party or its agents;
7.2. is obtained by a Party from a third party who (i) is rightfully in
possession of the Confidential Information and (ii) does not violate
any obligation of confidentiality or non-use by disclosing such
Confidential Information;
7.3. is in the receiving Party's possession prior to disclosure by the
disclosing Party;
7.4. is independently developed by a Party without use of or access to
any other Party's Confidential Information; or
7.5. is disclosed by a Party pursuant to a requirement of law, provided
that such receiving Party has complied with the provisions of
paragraph 8 below.
8. If a Party is requested or required by any legal process (such as
deposition, interrogatories, requests for information, documents or
admissions, subpoenas, or the like) to disclose any other Party's
Confidential Information, the receiving Party will immediately notify the
disclosing Party. The disclosing Party may seek an appropriate protective
order and/or waive the receiving Party's obligation to comply with this
Agreement. The receiving Party will fully cooperate with all efforts to
obtain any such order or other remedy. If no protective order is obtained
and the recipient has not received a waiver hereunder before one (1)
business day prior to the time the recipient must disclose Confidential
Information or else stand liable for contempt or suffer other sanction or
penalty, the receiving Party may disclose to the minimum extent legally
required the requested Confidential Information; the receiving Party will
use its best efforts to have such disclosed Confidential Information
treated as confidential.
9. Except with the written consent of the other Party, other than as permitted
by paragraph 2 above neither Party will disclose to any third party (a)
that Confidential Information has been made available or that discussions
or negotiations may be taking place among the Parties with respect to the
Projects, or (b) the terms, conditions, status or other aspects of any such
negotiations, whether pending or concluded, among the Parties.
10. Nothing herein shall be construed as giving any Party any right, title or
interest in or ownership of any other Party's Confidential Information.
With respect to any Confidential Information which is or becomes public
information or is now or hereafter becomes covered by any patent, each
Party's rights with respect thereto shall be subject to all rights of the
patent owner and/or licensee.
1l. Specific information disclosed as part of Confidential Information shall
not be considered available to the general public or in the prior
possession of recipient merely because it is embraced by more general
information available to the general public or in the prior possession of
any Party.
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12. Publication. In the event a Party chooses to publish any data relating to
the technology disclosed hereunder (including without limitation the
submission of such proposed publication to a journal, editor, selection or
review committee or other person for a conference, symposium or other
public meeting, or other third person), the publishing Party shall, at
least four weeks in advance of any such publication, submit to the other
Parties for review the text of any such proposed oral or written
publication, including any abstract. The other Party may request in writing
further delay of the proposed publication for up to an additional three
months for purposes of allowing either Party to complete development
necessary for filing a patent application and to file such a patent
application. The terms of this Section shall not supersede the obligations
of confidentiality set forth in this Agreement.
13. Publicity. Neither West, West/Nottingham or West/Lakewood, on the one hand,
nor Paramount or IDDS, on the other hand, shall issue any press release or
other public statement, or any communication or response to a third Party,
whether oral or written, disclosing the existence of this Agreement or any
other agreement or information or activity relating to the activities among
the Parties without the prior written consent of the other Party, which
shall not be unreasonably withheld or delayed; provided, however, that no
Party will be prevented from complying with any duty of disclosure it may
have pursuant to law or governmental regulation, in which case, the
disclosing Party shall provide the other Party reasonable prior written
notice of such required disclosure.
14. Use of Names. Neither West, West/Nottingham or West/Lakewood, on the one
hand, nor Paramount or IDDS, on the other hand, will, without the prior
written consent of the other Party, use the name or any trademark or trade
name owned by the other Party, or owned by an affiliate of the other Party,
in any publication, publicity, advertising or otherwise, except where
required by law.
15. The Parties recognize and acknowledge the competitive value and
confidential nature of the other's Confidential Information and the
irreparable damage that could result if Confidential Information is
disclosed in violation of this Agreement. Each Party may institute
appropriate proceedings to enforce its rights hereunder. The Parties
acknowledge and agree that money damages would not be a sufficient remedy
for any violation of this Agreement and, accordingly, either Party shall be
entitled, in addition to any monetary damages, to specific performance and
injunctive relief as remedies for any violation of this Agreement. These
remedies shall not be exclusive but shall be in addition to all other
remedies available at law or in equity.
16. This Agreement constitutes the entire agreement among the Parties and
supersedes and replaces all prior discussions, agreements and rights
relating to the subject matter hereof The Parties agree that all
Confidential Information disclosed between the Parties under the
Confidentiality Agreement between West and Paramount dated August 31, 1999
shall be considered Confidential Information covered by the terms of this
Agreement.
17. This Agreement may be amended only by a written instrument signed by the
Parties.
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18. This Agreement may not be assigned by any Party without the prior written
consent of the other Parties, provided however, that either Party may,
without such consent, assign this Agreement and its rights and obligations
hereunder to its Affiliates or in connection with the transfer or sale of
all or substantially all of its business, or in the event of its merger or
consolidation or change in control or similar transaction. Any purported
assignment in violation of the preceding sentence: shall be void. Any
permitted assignee shall assume all obligations of its assignor under this
Agreement.
19. This Agreement, and, any interpretation, dispute or controversy arising out
of this Agreement, shall be governed by and construed in accordance with
the laws of the Commonwealth of Pennsylvania, U.S.A., without regard to the
conflicts of laws principles thereof.
20. Any waiver by any Party of any provision of this Agreement shall not be
construed or deemed to be a waiver of any other provision of this Agreement
of a waiver of any subsequent breach of the same provision.
21. This Agreement has been executed by each Party's authorized signatory.
22. This Agreement shall be binding upon and enforceable by the Parties and
their successors and permitted assigns until the date five (5) years after the
expiration of the License Agreement.
INNOVATIVE DRUG DELIVERY SYSTEMS, PARAMOUNT CAPITAL INVESTMENTS, LLC.
INC.
By: /s/ Mark C. Rogers By: /s/ Lindsay A. Rosenwald
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Name: Mark C. Rogers, M.D., Chairman Lindsay A. Rosenwald, M.D.,
Chairman
WEST PHARMACEUTICAL SERVICES, INC. WEST PHARMACEUTICAL SERVICES DRUG
DELIVERY & CLINICAL RESEARCH CENTRE,
LTD.
By: /s/ Donald E. Morel By: /s/ Donald E. Morel
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Donald E. Morel, Division President, Donald E. Morel, Chairman
Drug Delivery Systems
WEST PHARMACEUTICAL SERVICES LAKEWOOD, INC.
By: /s/ Robert S. Hargesheimer
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Robert S. Hargesheimer, General Manager
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