Exhibit
(d)(5)
NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT
This Non-Disclosure AND Confidentiality
Agreement (hereinafter the Agreement) is made and entered
into as of the 16th day of July, 2002 (hereinafter Effective
Date), by and between Shire US Inc. (hereinafter SHIRE), and
New River Pharmaceuticals Inc. (formerly, Lotus Biochemical
Corporation), a Virginia corporation with offices located at The
Governor Tyler, 1902 Downey Street, Radford, Virginia 24141
(hereinafter NEW RIVER) (each individually hereinafter referred
to as a Party and collectively referred to as Parties).
Recitals
Whereas the Parties intend to engage in discussions
and evaluations concerning one or more potential arrangements by
which SHIRE and NEW RIVER may enter into a business relationship
or may enter into one or more business transactions (hereinafter
collectively referred to as the Business Purpose); and
Whereas the Parties recognize that in the course of their
discussions to further the Business Purpose, it may become
necessary for either or both Parties to disclose Confidential
Information (as defined below) both orally and/or in writing; and
Whereas the Parties intend that any Confidential
Information disclosed by either Party shall be used by the other
Party only to further the Business Purpose and that any
Confidential Information disclosed shall be protected from
further disclosure to unauthorized parties by the terms of this
Agreement.
Now, Therefore, in consideration of the discussions
and the sharing of information between the Parties, and the
premises, conditions, covenants and warranties herein contained,
the Parties agree as follows:
1. Definitions. For purposes of this Agreement, the
terms below shall have the following meanings:
(a) Confidential Information shall mean:
(i) with respect to NEW RIVER, information as defined
generally in section l(a)(ii) following, as well as information,
in any format, whether written, oral, visual, electronic, or
otherwise, and whether commercial, technical, non-technical, or
regulatory in nature, including, without limitation,
data, know-how, formulae, processes, designs, sketches,
photographs, plans, drawings, specifications, samples, reports,
pricing information, studies, findings, inventions, ideas,
materials, documents, lists, financial information, investments,
information concerning current or proposed products, services or
methods of manufacture, operation and/or business plans, whether
or not originated by NEW RIVER, which relates to NEW RIVERs
proprietary polypeptide and polymer conjugate chemistry and NEW
RIVERs platform technology Carrierwave, and processes and
analytical techniques associated with these products/technologies
and their successors. Where any
Confidential Information is derived from the synthesis in a
unique manner, or into a unique concept, of various elements that
may be contained in the public domain, no part of the
Confidential Information shall be deemed to be in the public
domain or to be in SHIREs possession or to be thereafter
acquired by SHIRE merely because it embraces information in the
public domain or general information that SHIRE may thereafter
acquire.
(ii) with respect to either Party, information, in any
format, whether written, oral, visual, electronic, or otherwise,
including, without limitation, data, materials, documents, lists,
financial information, investments, information concerning current
or proposed products, services or methods of operation and/or
business plans, whether or not originated by the Disclosing Party,
which is used in Disclosing Partys business and is (a)
proprietary to, about, or created by Disclosing Party; (b) gives
Disclosing Party some competitive business advantage or the
opportunity of obtaining such advantage or the disclosure of which
could be detrimental to the interests of Disclosing Party; (c)
which from all the relevant circumstances should reasonably be
assumed by Receiving Party to be confidential and proprietary to
Disclosing Party or would appear to be of a proprietary nature
and, therefore, should not be disclosed to a third party without
the Disclosing Partys consent; including business, financial,
customer, supplier, and technical data; or (d) not generally known
by non-Disclosing Party personnel.
(iii) any information which the Disclosing Party orally or
visually discloses and identifies at the time of disclosure as
being disclosed in confidence and which is reduced to tangible
form and such tangible form is delivered to the receiving party
within ten (10) days after the date of first disclosure. If such
Information was provided orally, the notice given to the Receiving
Party shall include a written description of such Information.
(b) Disclosing Party shall mean the Party disclosing Confidential
Information.
(c) Receiving Party shall mean the Party receiving
disclosure of the Confidential Information.
2. Applicability. This Agreement shall apply to all
Confidential Information
disclosed by one Party to the other Party. This Agreement
shall apply to Confidential
Information of the Parties parent, subsidiary and affiliated
companies, and the nondisclosure
obligations set forth herein shall apply to the Parties
parent, subsidiary and related companies.
3. Non-Disclosure Obligation. Each Party agrees:
(a) to hold the other Partys Confidential Information in strict
confidence;
(b) to exercise at least the same care in protecting the other
Partys Confidential Information from disclosure as the Party uses with regard to
its own Confidential Information;
(c) not to disclose such Confidential Information to third parties; and
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(d) not to use any Confidential Information for any
purpose except for the Business Purpose without the prior, written
consent of the Disclosing Party.
4. Disclosure to Representatives. Each Party may
disclose the other Partys
Confidential Information to its directors, officers, members,
managers, employees, legal
advisors, and financial advisors (each bound by obligations of
confidentiality consistent with
this Agreement) who have bona fide need to know, but only to the
extent necessary to carry out the Business Purpose. Each Party agrees to instruct all such
representatives not to disclose such Confidential Information to third parties,
including consultants, without the prior written permission of the Disclosing Party.
5. Non-Confidential Information. Confidential
Information shall not include information which the Receiving Party is able to demonstrate by
competent proof:
(a) is now or hereafter becomes, through no act or omission on
the part of the Receiving Party, generally known or available within the
industry, or is now or later enters the public domain through no act or omission on the part of the
Receiving Party;
(b) was acquired or known by the Receiving Party before
receiving such information from the Disclosing Party under this Agreement as shown by the
Receiving Partys written records;
(c) is hereafter rightfully furnished to the Receiving Party by
a third party having a right to disclose it, without restriction as to use or
disclosure;
(d) is information which the Receiving Party can document was
independently developed by the Receiving Party without reference to
Confidential Information furnished by the Disclosing Party;
(e) is required by a court or other governmental authority of
competent jurisdiction to be disclosed by the Receiving Party, provided the Receiving
Party uses reasonable efforts to give the Disclosing Party reasonable notice of such required
disclosure; or
(f) is disclosed with the prior, written consent of the Disclosing Party.
6. Removal of Confidential Materials. Each Party
agrees not to remove any
materials or tangible items containing any of the other partys
Confidential Information from
the premises of the Disclosing Party without the Disclosing
Partys consent. Each Party
agrees to comply with any and all terms and conditions that the
Disclosing Party imposes
upon approved removal of such materials or items, including,
without limitation, that the
removed materials or items must be returned by a certain date,
and that no copies of the
removed materials or items are to be made.
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7. Return of Confidential Information. Upon the Disclosing
Partys request, the
Receiving Party will promptly return to the Disclosing Party all
materials or tangible items
containing the Disclosing Partys Confidential Information and all
copies thereof.
8. Notification. The Receiving Party shall notify the
Disclosing Party
immediately upon discovery of any unauthorized use or disclosure of the
Disclosing Partys
Confidential Information, or any breach of the Agreement by the
Receiving Party, and will
cooperate with the Disclosing Party in any reasonable fashion in order
to assist the
Disclosing Party regain possession of the Confidential Information and
prevent its further
unauthorized use or disclosure.
9. No Grant of Rights. Each Party recognizes and agrees that
nothing contained
in this Agreement will be construed as granting any rights to the
Receiving Party, by license
or otherwise, to use any of the Disclosing Partys Confidential
Information except as
specified in this Agreement.
10. Limitation As To Effect. Nothing contained in this
Agreement shall be construed, by implication or otherwise, as an
obligation to enter into any further agreement, and nothing contained in
this Agreement shall be construed, by implication or otherwise, as a
grant, option, or license under any patent, trade secret, copyright,
trademark, or other proprietary rights of either party. In the event that
the Confidential Information is or becomes the subject of a, or a
plurality of, Patent Application(s), Laid-Open Patent Application(s),
Patent(s) or Copyright, the Receiving Party agrees and understands that
the Disclosing Party will have all rights and remedies available to it
under the applicable law as a result of said Patent Application(s),
Laid-Open Patent Application(s), Patent(s) or Copyright. In the event that
the Confidential Information is or becomes the subject of a, or a
plurality of, Patent Application(s), Laid-Open Patent Application(s),
Patent(s) or Copyright, the Receiving Party shall not be in breach of this
Agreement simply by acting in accordance with its terms and conditions.
11. Equitable and Legal Relief. Each Party acknowledges that
all of the
Disclosing Partys Confidential information is owned solely by the
Disclosing Party (and/or
its licensors) and that the unauthorized disclosure or use of such
Confidential Information
would cause irreparable harm and significant injury, the degree of
which may be difficult to
ascertain and for which monetary damages would provide an
insufficient remedy.
Accordingly, each Party agrees that the Disclosing Party shall have the
right to obtain an
immediate injunction from any court of competent jurisdiction enjoining
actual or threatened
breach of this Agreement and/or actual or threatened disclosure of the
Confidential
Information without the necessity of posting a bond or other security.
Each Party shall also
have the right to pursue any other rights or remedies available at law
or equity for such a breach.
12. Termination. This Agreement shall became effective upon the Effective Date
and shall remain in effect for five (5) years from the Effective Date
unless extended by the
written consent of the Parties.
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13. Notice. All notices under this Agreement
shall be in writing and shall be deemed duly given if sent by fax
copy as directed below and followed by hard copy, dispatched on
the same day (a) by a nationally reputable delivery service,
prepaid and addressed as set forth below, or (b) by certified or
registered mail, return receipt requested, postage prepaid, and
addressed as follows:
If to NEW RIVER:
New River Pharmaceuticals
Inc.
The Governor Tyler
1902 Downey Street
Radford, VA 24141 USA
Attention: Randal J. Kirk
Fax: (540) 633-7979
With a copy to:
New River Pharmaceuticals
Inc.
The Governor Tyler
1902 Downey Street
Radford, VA 24141 USA
Attention: Marcus E. Smith, Esq.
Fax No.: (540) 633-7971
If to SHIRE:
Shire US Inc.
7900 Tanners Gate Drive
Florence, KY 41042 USA
Attention: Jeff Martini
Fax: (859) 282-2103
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With a copy to:
Shire US Inc.
7900 Tanners Gate Drive
Florence, KY 41042 USA
Attention: Kevin T. Anderson, Esq.
Fax: (859)282-1794
Any party may change its address for notices by giving the other
party notice of such change in the manner provided above.
14. Integration. This Agreement, subject to the
terms and conditions imposed on
the removal of Confidential Information under paragraph 6,
sets forth the entire agreement
between the Parties with respect to the subject matter
hereof, and may not be modified or
amended except by written agreement executed by the parties
hereto.
15. Severability. If any provision of this
Agreement is declared to be invalid,
void or unenforceable, (a) the remaining provisions of this
Agreement shall continue in full
force and effect, and (b) the invalid or unenforceable
provision shall be replaced by a term or
provision that is valid and enforceable and that comes
closest to expressing the intention of
such invalid or unenforceable term or provision.
16. Governing Law; Attorneys Fees. The validity
and interpretation of this
Agreement shall be governed by, and construed and enforced
in accordance with, the laws of
the Commonwealth of Virginia applicable to agreements made
and to be fully performed
therein (excluding conflicts of laws provisions thereof).
Each party irrevocably submits to
the jurisdiction of the United States District Court for
the Western District of the
Commonwealth of Virginia for the purpose of any suit,
action, or other proceeding arising
out of this Agreement, or any of the agreements or
transactions contemplated hereby, which
is brought by or against any party and (i) each party
hereby irrevocably agrees that all claims
in respect of any such suit, action or proceeding may be
heard and determined in any such
court, (ii) to the extent that any party has acquired, or
hereafter may acquire, any immunity
from jurisdiction of any such court or from any legal
process therein, it hereby waives, to the
fullest extent permitted by law, such immunity and (iii)
agrees not to commence any action,
suit or proceeding relating to this Agreement except in
such court. Each party hereby
waives, and agrees not to assert in any such suit, action
or proceeding, in each case, to the
fullest extent permitted by applicable law, any claim that
(a) it is not personally subject to the
jurisdiction of any such court, (b) it is immune from any
legal process (whether through
service or notice, attachment prior to judgment attachment
in aid of execution, execution or
otherwise) with respect to it or its property or
(c) any such suit, action or proceeding is
brought in an inconvenient forum. In any action to enforce
the terms of this Agreement, the
prevailing party shall be entitled to recover its
reasonable attorneys fees and expenses.
17. Waiver. No waiver by either Party, whether
express or implied, of any
provision of this Agreement shall constitute a continuing
waiver of such provision or a
waiver of any other provision of this Agreement. No waiver
by either Party, whether express
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or implied, of any breach or default by the other party,
shall constitute a waiver of any other breach or default of the
same or any other provision of this Agreement.
18. Binding Authority. Each Party represents and
warrants that (a) it has the
power and authority to enter into this Agreement, (b) it has
the right to permit the other Party
to evaluate Information in accordance herewith, and (c) the
terms of this Agreement are not
inconsistent with any other contractual or legal obligation it
may have.
19. Multiple Counterparts. This Agreement may be
executed in any number of
counterparts, and the Parties may execute and exchange
facsimile copies of this Agreement,
all of which taken together shall constitute one agreement.
In Witness Whereof, the Parties have executed this
Agreement through their duly authorized representatives on the
date set forth above.
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New River Pharmaceuticals Inc. |
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Shire US Inc. |
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By: |
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By: |
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Randal J. Kirk |
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Name: Jeffrey W. Martini |
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Chairman, President and CEO |
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Title: Director of Finance Officer Shire US Inc. |
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L000 000 8782
July 13, 2004
Via Email
Thomas Zulauf
Vice President, Business Development
Shire US Inc.
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RE: |
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Non-Disclosure and Confidentiality Agreement dated as of July 16, 2002 (the NCA)
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Dear Tom:
I look forward to continuing the discussions regarding our companies. As these discussions will
include confidential information from each party, we can use the existing NCA with only a few minor
changes:
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New River Pharmaceuticals Inc.s street address has changed to 1881 Grove Avenue, Radford, Virginia 24141; and |
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Given the nature of the projections and other confidential information to be discussed, the
term of the NCA shall be extended from July 16, 2007 to July 16, 2009 pursuant to
Sections 12 and 14 of the NCA; and |
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Other than these two amendments, the NCA shall remain unchanged and in full force and
effect in accordance with its stated terms and conditions. |
If these amendments are acceptable, please sign below to confirm your agreement and
return a copy of the signed letter to my attention at 540-633-7939 (FAX).
Thank you, and I look forward to hearing from you.
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Sincerely,
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Randal J. Kirk |
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President & CEO |
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SEEN & AGREED TO:
Shire US Inc.
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By: |
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Thomas Zulauf |
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VP, Business Development |
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Date: |
Aug 16, 2004 |
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NEW RIVER PHARMACEUTICALS INC.
The Governor Tyler
1881 Grove Avenue
Radford, Virginia 24141
October 29, 2004
Shannon M. Kuhl, Esq.
Associate Director, Legal Affairs, Shire
One Riverfront Place, Suite 900
Newport, Kentucky 41071
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RE: |
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Amendment to Non-Disclosure and Confidentiality Agreement between
Shire US Inc. and New River Pharmaceuticals Inc. dated as of July 16, 2002, as amended
August 16, 2004 (the NCA) |
Dear Ms. Kuhl:
You have informed us that Shire has conducted/is conducting a series of corporate reorganizations
and restructurings that require additional parties to be added to the NCA for Shires consideration
of New River Pharmaceutical Inc.s product known as NRP104. Pursuant to Shire US Inc.s request, we
hereby amend and supplement the NCA as follows:
(1) The Parties to the NCA hereby amend the NCA to permit Shire US Inc. to utilize the following
ten related entities and the employees of those entities in Shires review of New River
Pharmaceutical Inc.s Confidential Information under the NCA. These ten related entities shall be
deemed authorized representatives (and not affiliates or third parties) of Shire US Inc. as
provided in Section 4 of the NCA, and they shall be bound by, and subject to, the terms of the NCA
as though they had been original parties to the NCA:
Shire Pharmaceutical Inc. (Delaware)
Shire Biochem Inc. (Canada)
Shire LLC (Kentucky)
Shire Pharmaceutical Development Inc. (Maryland)
Shire US Manufacturing Inc. (Maryland)
Shire Development Inc. (Delaware)
Shire Pharmaceutical Development ltd (Great Britain)
Shire Pharmaceutical Group plc (Great Britain)
Shire Regulatory Inc. (Delaware)
Shire IP Services Corporation (Nova Scotia)
Shire US Inc. shall be responsible for the conduct and compliance of these authorized
representatives.
Shannon M. Kuhl, Esq.
October 29, 2004
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(2) Except as expressly set forth in this letter amendment, the NCA shall remain unchanged and
in full force and effect in accordance with its stated terms and conditions.
If you concur in these amendments to the NCA, please confirm your agreement by signing,
dating and returning a copy of this letter to the undersigned. Thank you.
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Sincerely,
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Randal J. Kirk |
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President & CEO
New River Pharmaceuticals Inc. |
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SEEN & AGREED TO:
SHIRE US INC.
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By: |
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Officer |
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Date: |
29 Oct 04 |
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L000 000 8858
NEW RIVER PHARMACEUTICALS INC.
The Governor Tyler
1881 Grove Avenue
Radford, Virginia 24141
November 12, 2004
Shannon M. Kuhl, Esq.
Associate Director, Legal Affairs, Shire
One Riverfront Place, Suite 900
Newport, Kentucky 41071
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RE:
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Amendment to Non-Disclosure and Confidentiality Agreement between
Shire US Inc. and New River Pharmaceuticals Inc. dated as of July 16, 2002,
as amended August 16, 2004 and October 29, 2004 (the NCA) |
Dear Ms. Kuhl:
Pursuant to Shire US Inc.s request, we hereby amend and supplement the NCA as
follows:
(1) The Parties to the NCA hereby amend the NCA to permit Shire US Inc. to utilize
the
following individual consultant in its review of New River Pharmaceutical Inc.s
Confidential Information under the NCA. Upon the execution of this letter
amendment,
this individual consultant shall be deemed an authorized representative (and not an
affiliate or third party) of Shire US Inc. as provided in Section 4 of the NCA,
and she
shall be bound by the terms of the NCA as though she had been an original Party
in the
NCA:
Susan Hawlk
4969 Thornwood Trace
Acworth,GA 30102
Shire US Inc. shall be responsible for the conduct and compliance of this
authorized representative.
(2) By her execution of this letter amendment, Susan Hawlk accepts and agrees to
bound by the terms of the NCA as though she had been named as an original Party in
the NCA, and she acknowledges that she shall not discuss, share, use or disclose any
Confidential Information except as provided in Section 4 of the NCA. Further, she
confirms that she is authorized to enter into this letter agreement and that this
letter
agreement shall be binding upon her in accordance with its stated terms and
conditions.
A copy of the NCA is enclosed with this letter amendment for reference.
Shannon M. Kuhl, Esq.
November 12, 2004
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(3) Except as expressly set forth in Sections (1) and (2) of this letter amendment,
the NCA shall remain unchanged and in full force and effect in accordance with its
stated terms and conditions.
If you concur in these amendments to the NCA, please confirm your agreement by signing,
dating and returning a copy of this letter to the undersigned. Thank you.
Sincerely,
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Randal J. Kirk |
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President & CEO
New River Pharmaceuticals Inc. |
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SEEN & AGREED TO:
SHIRE US INC.
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By: |
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Title: |
V.P. Bus. Development |
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Date: |
Nov 15, 2004 |
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SEEN & AGREED TO:
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Susan Hawlk |
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Date: November 12, 2004 |
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L000 000 8859
NEW RIVER PHARMACEUTICALS INC.
The Governor Tyler
1881 Grove Avenue
Radford, Virginia 24141
November 15, 2004
Shannon M. Kuhl, Esq.
Associate Director, Legal Affairs, Shire
One Riverfront Place, Suite 900
Newport, Kentucky 41071
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RE: |
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Amendment to Non-Disclosure and Confidentiality Agreement between
Shire US Inc. and New River Pharmaceuticals Inc. dated as of July 16, 2002, as
amended August 16, 2004 and October 29, 2004 (the NCA) |
Dear Ms. Kuhl:
Pursuant to Shire US Inc.s request, we hereby amend and supplement the NCA as
follows:
(1) The Parties to the NCA hereby amend the NCA to permit Shire US Inc. to utilize the
following individual consultant in its review of New River Pharmaceutical Inc.s
Confidential Information under the NCA. Upon the execution of this letter amendment,
this individual consultant shall be deemed an authorized representative (and not an affiliate or third party) of Shire US Inc. as
provided in Section 4 of the NCA, and he shall be bound by the terms of the NCA as
though he had been an original Party in the NCA:
Clinical Development Consultants Inc.
7301 RR 620 N, Suite #155-195
Austin, TX 78726
Shire US Inc. shall be responsible for the conduct and compliance of this authorized
representative.
(2) By his execution of this letter amendment, Martin Garcia accepts and agrees to
bound by the terms of the NCA as though he had been named as an original Party in
the NCA, and he acknowledges that he shall not discuss, share, use or disclose any
Confidential Information except as provided in Section 4 of the NCA. Further, he
confirms that he is authorized to enter into this letter agreement and that this letter
agreement shall be binding upon his in accordance with its stated terms and conditions.
A copy of the NCA is enclosed with this letter amendment for reference.
Shannon M. Kuhl, Esq.
November 15, 2004
Page2
(3) Except as expressly set forth in Sections (1) and (2) of this letter amendment, the NCA
shall remain unchanged and in full force and effect in accordance with its stated terms and
conditions.
If yon concur in these amendments to tbe NCA, please confirm your agreement by signing, dating and
returning a copy of this letter to the undersigned. Thank you.
Sincerely
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Randal J. Kirk |
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President & CEO
New River Pharmaceuticals Inc. |
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SEEN & AGREED TO:
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SHIRE US INC.
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By: |
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Title: |
V. P. Business Development |
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Date: |
15 Nov 2004 |
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SEEN & AGREED TO:
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Clinical Development Consultants, Inc.
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Martin Garcia, President |
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Date: |
15 NOV 04 |
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December 16, 2004
Shannon M. Kuhl, Esq.
Associate Director, Legal Affairs, Shire
One Riverfront Place, Suite 900
Newport, Kentucky 41071
Eric Smart
Albany Molecular Research, Inc.
21 Corporate Circle
Albany, New York 12203
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RE: |
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Non-Disclosure and Confidentiality Agreement between Shire US Inc. and New River
Pharmaceuticals Inc. dated as of July 16, 2002, as amended (the Shire NCA) and
Non-Disclosure & Confidentiality Agreement between Albany Molecular Research, Inc. and New
River Pharmaceuticals Inc. dated as of March 27, 2003 (the Albany NCA) |
Dear Shannon and Eric:
We understand that Shire plans to conduct a January 4, 2005 audit of operations at Albany
as they relate to New Rivers product known as NRP104.
Both Shire and Albany have signed New Rivers two-way Non-Disclosure & Confidentiality Agreement
that governs all Confidential Information related to NRP104. In both the Shire NCA and the
Albany NCA Section 4 requires New Rivers prior written permission to authorize the disclosure
of any New River Confidential Information to a third party.
By its signature below, New River hereby authorizes Shire and Albany to accomplish the audit for
NRP104 and share with each other such New River Confidential Information required therefore,
provided, however, that the Confidential Information regarding NRP104 shall remain New Rivers
Confidential Information and be protected and governed by the respective NCAs.
By their signatures below, both Shire and Albany hereby agree to the foregoing
provisions and agree that any disclosures of Albanys Confidential Information
1861 PRATT DRIVE, SUITE 1090 BLACKSBURG, VA 24060
540 953-3405 540 953-3407 fax www.nrpharma.com
December 16, 2004
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to Shire, or Shire Confidential Information to Albany, shall be protected and governed
by the NCAs.
Except as expressly set forth in this letter agreement, the NCAs shall remain unchanged and in full
force and effect in accordance with their stated terms and conditions.
Please confirm your agreement by signing, dating and returning a copy of this letter to the
undersigned. Thank you.
Sincerely,
Suma Krishnan
Vice President, Product Development
On behalf of
Krish S. Krishnan
COO & CFO
New River Pharmaceuticals Inc.
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SEEN & AGREED TO:
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SHIRE US INC.
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By: |
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Title: |
Associate General Counsel |
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Date: |
1/11/05 |
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SEEN & AGREED TO:
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ALBANY MOLECULAR RESEARCH, INC.
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By: |
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Title: |
Vice President, Business Development |
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Date: |
1/7/05 |
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APROVED AS TO CONTENT
1/6/05
L000 000 8904
December 16, 2004
Shannon M. Kuhl, Esq.
Associate Director, Legal Affairs, Shire
One Riverfront Place, Suite 900
Newport, Kentucky 41071
Francis P. McCune
Director of Legal Services, Patheon
2110 East Galbraith Road
Cincinnati, OH 45237
RE: |
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Non-Disclosure and Confidentiality Agreement
between Shire US Inc. and New River Pharmaceuticals Inc. dated as
of July 16, 2002, as amended (the Shire NCA) and Non-Disclosure &
Confidentiality Agreement between Patheon Inc. and New River
Pharmaceuticals Inc. dated as of May 31, 2003 (the Patheon NCA) |
Dear Ms. Kuhl and Mr. McCune:
We understand that Shire plans to conduct a January 11, 2005 audit
of operations at Patheon as they relate to New Rivers product
known as NRP104.
Both Shire and Patheon have signed New Rivers two-way Non-Disclosure
& Confidentiality Agreement that governs all Confidential Information
related to NRP104. In both the Shire NCA and the Patheon NCA Section 4
requires New Rivers prior written permission to authorize the
disclosure of any New River Confidential Information to a third party.
By its signature below, New River hereby authorizes Shire and Patheon
to accomplish the audit for NRP104 and share with each other such New
River Confidential Information required therefore, provided, however,
that the Confidential Information regarding NRP104 shall remain New
Rivers Confidential Information and be protected and governed by the
respective NCAs.
By their signatures below, both Shire and Patheon hereby agree
to the foregoing provisions and agree that any disclosures of
Patheons Confidential Information
1881 Grove Avenue
Radford, Virginia 24141
December 16, 2004
Page 2
to Shire, or Shire Confidential Information to Patheon, shall be
protected and governed by the NCAs.
Except as expressly set forth in this letter agreement, the NCAs
shall remain unchanged and in full force and effect in accordance
with their stated terms and conditions.
Please confirm your agreement by signing, dating and returning a copy of this letter to the undersigned. Thank you.
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Sincerely, |
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Krish S. Krishnan |
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COO & CFO |
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New River Pharmaceuticals Inc. |
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SEEN & AGREED TO: |
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SHIRE US INC. |
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By:
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Title:
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Senior Vice President, Associate
General Counsel |
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Date: 12/23/04 |
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SEEN & AGREED TO: |
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PATHEON INC. |
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By:
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Riccardo Trecroce, |
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Title:
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General Counsel & Senior Vice President Corporate Administration
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Date: January 3, 2005 |
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