1
EXHIBIT 10.23
CONFIDENTIALITY AGREEMENT
This confidentiality agreement is made as of the 1st day of
January, 1992, by and between Myco Pharmaceuticals Inc., a
Delaware corporation ("Company"), and ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
("Consultant").
W I T N E S S E T H:
WHEREAS, the Company desires to retain Consultant as an employee of the
Company and Consultant wishes to be retained by the Company as an employee of
the Company pursuant to that certain Employment and Noncompetition Agreement of
even date (the "Employment Agreement");
WHEREAS, the Company has developed, and the Company and/or Consultant
may continue to develop during the period Consultant is so retained by the
Company, certain Proprietary Information, Inventions and Intellectual Property
(as those terms are hereinafter defined), that the Company wishes to protect and
maintain as confidential;
WHEREAS, the Company from time to time has received, and may continue
to receive during the period Consultant is so retained by the Company, the
Proprietary Information of others, and the Company wishes to maintain the
confidentiality of such Proprietary Information; and
WHEREAS, the Company has developed, and will continue to develop during
the period Consultant is so retained by the Company, goodwill by, among other
things, substantial expenditure of money and effort;
NOW, THEREFORE, in consideration of the premises set forth below and
the mutual covenants and undertakings contained in this agreement, and for other
good and valuable consideration, receipt and sufficiency of which are hereby
mutually acknowledged, IT IS AGREED:
1. Definitions. As used in this Agreement, the following
terms shall have the following meanings:
(a) Agreement means this confidentiality agreement, including
all exhibits, schedules and annexations, as all may be amended from time to time
in the manner provided in this Agreement.
(b) Consultancy means the current or anticipated or subsequent
retention of Consultant by the Company as a part-time consultant or otherwise,
or any other period during which
2
Consultant receives compensation from the Company in any capacity.
(c) Intellectual Property means any Invention, writing, trade
name, trademark, service ▇▇▇▇ or any other material registered or otherwise
protected or protectible under state, federal, or foreign patent, trademark,
copyright, or similar laws.
(d) Inventions includes ideas, discoveries, inventions,
developments and improvements, whether or not reduced to practice and whether or
not patentable or otherwise within the definition of Intellectual Property.
(e) Proprietary Information includes any scientific,
technical, trade or business secrets of the Company and any scientific,
technical, trade or business materials that are treated by the Company as
confidential or proprietary, including, but not limited to, Inventions belonging
to the Company and confidential information obtained by or given to the Company
about or belonging to its suppliers, licensors, licensees, partners, affiliates,
customers, potential customers or others.
The definition of "Proprietary Information" herein shall not include
Proprietary Information which (i) was known by Consultant prior to its
disclosure by the Company; (ii) is publicly known through publication or
otherwise through no wrongful act of Consultant; (iii) is received from a third
party who rightfully discloses it to Consultant without restriction on its
subsequent disclosure; or (iv) is disclosed pursuant to the lawful requirement
of a governmental agency or by order of court of competent jurisdiction,
provided that such disclosure is subject to all applicable governmental or
judicial protection available for like material.
2. Consultant Acknowledgements. The Company has developed and will
develop its Proprietary Information and Intellectual Property over a substantial
period of time and at a substantial expense, and its Proprietary Information and
Intellectual Property are integral to the goodwill of the Company. During the
course of consultancy to the Company, Consultant may develop or become aware of
Proprietary Information and/or Intellectual Property. Protection of the
Proprietary Information and Intellectual Property is necessary to conduct the
Company's business, and the Company is and shall at all times remain the sole
owner of the Company's Proprietary Information and Intellectual Property.
3. Confidentiality. Consultant shall at all times, both during and
after any termination of Consultant's consultancy to the Company by either the
Company or Consultant, maintain in confidence and not utilize the Proprietary
Information or the
- 2 -
3
Intellectual Property of the Company, and/or technology or proprietary
information of others under confidential evaluation by the Company except in
performing services for the Company under the Employment Agreement. Maintaining
such Proprietary Information and Intellectual Property in confidence shall
include refraining from disclosing such Proprietary Information or Intellectual
Property to any third party (except when duly and specifically authorized in
writing to do so for purpose of furthering the business of the Company), and
refraining from using such Proprietary Information or Intellectual Property for
the account of Consultant or for any other person or business entity. Consultant
will not file patents based on the Company's technology or confidential
information, nor seek to make improvements thereon, without the Company's
written approval. Consultant agrees not to make any copies of the Proprietary
Information or Intellectual Property of the Company (except when appropriate for
the furtherance of the business of the Company or duly and specifically
authorized to do so) and promptly upon request, whether during or after the
period of consultancy to the Company, to return to the Company any and all
documentary, machine-readable or other elements or evidence of such Proprietary
Information, Intellectual Property, and any copies of either that may be in
Consultant's possession or under Consultant's control.
4. Rights to Inventions and Intellectual Property. In connection with
Consultant's consultancy to the Company, or by use of the resources of the
Company, whether or not Consultant is then retained by the Company, Consultant
may produce, develop, create, invent, conceive or reduce to practice Inventions
and Intellectual Property related to the business of the Company. Consultant
shall maintain and furnish to the Company complete and current records of all
such Inventions and Intellectual Property and disclose to the Company in writing
any such Inventions and Intellectual Property. Consultant agrees that all such
Inventions and Intellectual Property are and shall be the exclusive property of
the Company, and that the Company may use or pursue them without restriction or
additional compensation. Consultant: (i) hereby assigns, sets over and transfers
to the Company all of his right, title and interest in and to such Inventions
and Intellectual Property; (ii) agrees that Consultant and his agents shall,
during and after the period Consultant is retained by the Company, cooperate
fully in obtaining patent, trademark, service ▇▇▇▇, copyright or other
proprietary protection for such Inventions and Intellectual Property, all in the
name of the Company (but only at Company expense), and, without limitation,
shall execute all requested applications, assignments and other documents in
furtherance of obtaining such protection or registration and confirming full
ownership by the Company of such Inventions and Intellectual Property; and (iii)
shall, upon leaving the Company, provide to the Company in writing a full,
signed statement of all Inventions and
- 3 -
4
Intellectual Property in which Consultant participated prior to termination of
the consultancy to the Company. Consultant hereby designates the Company as its
agent, and grants to the Company a power of attorney with full substitution,
which power of attorney shall be deemed coupled with an interest, for the
purposes of effecting the foregoing assignments from the Consultant to the
Company.
5. Non-Solicitation. Consultant shall not during the term of the
Employment Agreement or at any time during the five (5) years following
termination of the Employment Agreement solicit any person who is employed by or
a consultant to the Company or any affiliate or subsidiary of the Company either
during Consultant's period of consultancy or during such five (5) year period,
to terminate such person's employment by or consultancy to the Company, such
affiliate or subsidiary. As used herein, the term "solicit" shall include,
without limitation, requesting, encouraging, assisting or causing, directly or
indirectly, any such employee or consultant to terminate such person's
employment by or consultancy to the Company, affiliate or subsidiary.
6. Continued Obligations. Consultant's obligations under this Agreement
shall not be affected: (i) by any termination of Consultant's consultancy,
including termination upon the Company's initiative; nor (ii) by any change in
Consultant's position, title or function with the Company; nor (iii) by any
interruption in consultancy during which Consultant leaves and then rejoins the
Company for any period within a period of one year and for any reason. Nothing
herein shall be construed as constituting an employment agreement or an
undertaking by the Company to retain Consultant's services for any stated period
of time.
7. No Conflicting Agreements. Consultant represents and warrants that
execution and performance of this Agreement does not and will not violate,
conflict with, or constitute a default under any contract, commitment,
agreement, understanding, arrangement, or restriction, or any adjudication,
order, injunction or finding of any kind by any court or agency to which
Consultant may be a party or by which Consultant may be bound.
8. Remedies. In the event of any breach by Consultant of any of the
provisions of this Agreement, the Company shall be entitled, in addition to
monetary damages and to any other remedies available to the Company under this
Agreement and at law, to equitable relief, including injunctive relief, and to
payment by Consultant of all costs incurred by the Company in enforcement
against Consultant of the provisions of this Agreement, including reasonable
attorneys' fees.
9. General Provisions.
- 4 -
5
(a) No Waiver. Waiver of any provision of this Agreement, in
whole or in part, in any one instance shall not constitute a waiver of any other
provision in the same instance, nor any waiver of the same provision in another
instance, but each provision shall continue in full force and effect with
respect to any other then-existing or subsequent breach.
(b) Notice. For purposes of this Agreement, notices and all
other communications provided for herein shall be in writing and shall be deemed
to have been duly given when delivered personally or by overnight courier with a
receipt obtained therefor or when mailed by United States registered or
certified mail, return receipt requested, postage prepaid, addressed as follows:
If to Consultant, to: ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
If to the Company, to: ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Myco Pharmaceuticals Inc.
▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
or to such other address as either party may furnish to the other in writing in
accordance with this Section , except that notices of changes of address shall
be effective upon receipt.
(c) Severability. If any provision of this Agreement shall be
found to be invalid, inoperative or unenforceable in law or equity, such finding
shall not affect the validity of any other provisions of this Agreement, which
shall be construed, reformed and enforced to effect the purposes of this
Agreement to the fullest extent permitted by law.
(d) Miscellaneous. This Agreement: (i) may be executed in any
number of counterparts, each of which, when executed by both parties to this
Agreement shall be deemed to be an original, and all of which counterparts
together shall constitute one and the same instrument; (ii) shall be governed by
and construed under the law of the Commonwealth of Massachusetts, without
application of principles of conflicts of laws; (iii) along with the Employment
Agreement, constitute the entire agreement of the parties with respect to the
subject matter hereof, superseding all prior oral and written communications,
proposals, negotiations, representations, understandings, courses of dealing,
agreements, contracts, and the like between the parties in such respect; (iv)
may be amended, modified, or terminated, and any right under this Agreement may
be waived in
- 5 -
6
whole or in part, only by a writing signed by both parties; (v) contains
headings only for convenience, which headings do not form part, and shall not be
used in construction, of this Agreement; (vi) shall bind and inure to the
benefit of the parties and their respective legal representatives, successors
and assigns, except that no party may delegate any of its or his obligations
under this Agreement, or assign this Agreement, without the prior written
consent of the other party, except the Company may assign this Agreement in
connection with the merger, consolidation, or sale of all or substantially all
assets of the Company; and (vii) be enforced only in courts located within the
Commonwealth of Massachusetts and the parties hereby agree that such courts
shall have venue and exclusive subject matter and personal jurisdiction, and
consent to service of process by registered mail, return receipt requested, or
by any other manner provided by law.
Executed under seal as of the date first above written.
MYCO PHARMACEUTICALS, INC.
By:________________________
Title
___________________________
▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
- 6 -
