| <PAGE> | |
| Exhibit (c)(4) | |
| MUTUAL NON-DISCLOSURE AGREEMENT | |
| Each undersigned party (the "Receiving Party") understands that the | |
| other party (the "Disclosing Party") has disclosed or may disclose information | |
| relating to the Disclosing Party's business particularly relating to uniform | |
| informer libraries, chemi-informatic tools and the nature of chemical libraries | |
| (including, with limitation, names and expertise of employees and consultants, | |
| know-how, formulas, processes, ideas, inventions (whether patentable or not), | |
| schematics, computer programs, software code, algorithms, development tools, | |
| manufacturing capability or processes, chemical routes, chemical structures, | |
| relationships with other businesses, business plans, and other technical, | |
| business, financial, customer and product development plans, forecasts, | |
| strategies and information), which to the extent previously, presently, or | |
| subsequently disclosed to the Receiving Party is hereinafter referred to as | |
| "Proprietary Information" of the Disclosing Party. | |
| Proprietary Information also | |
| includes any information which the Disclosing Party has received from a third | |
| party which the Disclosing Party is obligated to treat as confidential or | |
| proprietary. | |
| Notwithstanding the foregoing, nothing will be considered "Proprietary | |
| Information" of the Disclosing Party unless either (1) it is first disclosed in | |
| tangible form and is conspicuously marked "Confidential", "Proprietary" or the | |
| like or (2) it is first disclosed in non-tangible form and orally identified as | |
| confidential at the time of disclosure and is summarized in tangible form | |
| conspicuously marked "Confidential" within thirty (30) days of the original | |
| disclosure. | |
| In consideration of and solely for the purpose of the parties' | |
| discussion regarding a possible business transaction and any access the | |
| Receiving Party may have to Proprietary Information of the Disclosing Party, | |
| each party (as the Receiving Party) hereby agrees as follows: | |
| 1. | |
| Non-Disclosure and Non-Use Obligations. | |
| The Receiving Party | |
| -------------------------------------- | |
| agrees (i) to hold the Disclosing Party's Proprietary Information in strict | |
| confidence and to take all reasonable precautions to protect such Proprietary | |
| Information (including, without limitation, all precautions the Receiving Party | |
| employs with respect to its most confidential materials), (ii) not to divulge | |
| any such Proprietary Information or any information derived therefrom to any | |
| third person (except consultants or agents, subject to the conditions stated | |
| below), (iii) not to make any use whatsoever at any time of such Proprietary | |
| Information except to evaluate internally whether to enter into a proposed | |
| business transaction with the Disclosing Party without the prior written | |
| permission of the disclosing party, (iv) not to remove or export from the United | |
| States or re-export any such Proprietary Information or any direct product | |
| thereof except in compliance with all licenses and approvals required under | |
| applicable export laws and regulations, including without limitation, those of | |
| the U.S. Department of Commerce, and (v) not to copy or reverse engineer any | |
| such Proprietary Information. | |
| Any employee, consultant or agent given access to | |
| any such Proprietary Information must have a legitimate "need to know" and shall | |
| be similarly bound in writing. | |
| The parties shall be entitled to exchange | |
| Proprietary Information under the | |
| <PAGE> | |
| terms of this Agreement for a period not to exceed two (2) years from the date | |
| hereof, unless otherwise extended by mutual written agreement of the parties or | |
| incorporated into a separate agreement. | |
| Without granting any right or license, | |
| the Disclosing Party agrees that the foregoing clauses (i), (ii), (iii) and (v) | |
| shall not apply with respect to all obligations after five (5) years following | |
| the disclosure thereof or any information that the Receiving Party can document | |
| (i) is or (through no improper action or inaction by the Receiving Party or any | |
| agent, consultant or employee) becomes generally known to the public, (i) was in | |
| its possession or the possession of an affiliate or consultant or known by it | |
| prior to receipt from the Disclosing Party, (iii) was rightfully disclosed to | |
| it, an affiliate or a consultant by a third party without restriction, or (iv) | |
| was independently developed without use of any Proprietary Information of the | |
| Disclosing Party by employees of the Receiving Party who can be demonstrated to | |
| have had no access to such information. | |
| The Receiving Party may make disclosures | |
| required by court order provided the Receiving Party uses diligent efforts to | |
| limit disclosure and to obtain confidential treatment or a protective order and | |
| has allowed the Disclosing Party to participate in the proceeding. | |
| 2. | |
| Patent or Copyright Infringement. | |
| Nothing in this Agreement is | |
| -------------------------------- | |
| intended to grant any rights under any patent or copyright of the Disclosing | |
| Party, nor shall this Agreement grant the Receiving Party any rights in or to | |
| the Disclosing Party's Proprietary Information, except the limited right to | |
| review such Proprietary Information solely for the purpose of evaluating a | |
| possible business transaction. | |
| 3. | |
| Return of Materials. | |
| Immediately upon (i) the decision by either | |
| ------------------- | |
| party not to enter into a relationship as a result of the exchange of | |
| information hereunder, or (ii) a request by the Disclosing Party at any time, | |
| the Receiving Party will turn over to the Disclosing Party all Proprietary | |
| Information of the Disclosing Party and all documents or media containing any | |
| such Proprietary Information and any and all copies or extracts or derivatives | |
| thereof to the extent it is requested by either party in writing, except that a | |
| single copy may be retained for legal archival purposes, subject to protection | |
| and non-disclosure in accordance with the term of this agreement. | |
| The Receiving | |
| Party understands that nothing herein (i) requires the disclosure of any | |
| Proprietary Information of the Disclosing Party, which shall be disclosed if at | |
| all solely at the option of the Disclosing Party, or (ii) requires the | |
| Disclosing Party to proceed with any proposed transaction or relationship in | |
| connection with which Proprietary Information may be disclosed. | |
| 4. | |
| No Publicity. | |
| Except to the extent required by law, neither | |
| ------------ | |
| party shall disclose the existence or subject matter of the negotiations or | |
| business relationship contemplated by this Agreement. | |
| 5. | |
| Securities Law Considerations. | |
| Each party is aware, and will | |
| ----------------------------- | |
| advise its employees, consultants and agents who are informed of the matters | |
| that are the subject of this agreement, of the restrictions imposed by the | |
| United States securities laws on the purchase and sale of securities by any | |
| person who has received material, non-public information from the issuer of such | |
| securities and on the communication of such information to any other person when | |
| it is reasonably foreseeable that such other person is likely to purchase or | |
| sell such securities in reliance upon such information. | |
| 2 | |
| <PAGE> | |
| 6. | |
| Miscellaneous. | |
| The Receiving Party acknowledges and agrees that | |
| ------------- | |
| due to the unique nature of the Disclosing Party's Proprietary Information, | |
| there can be no adequate remedy at law for any breach of its obligations | |
| hereunder, that any such breach may allow the Receiving Party or third parties | |
| to unfairly compete with the Disclosing Party resulting in irreparable harm to | |
| the Disclosing Party, and therefore, that upon any such breach or any threat | |
| thereof, the Disclosing Party may seek appropriate equitable relief (without the | |
| need to post bond or other security) in addition to whatever remedies it might | |
| have at law. | |
| The Receiving Party will notify the Disclosing Party in writing | |
| immediately upon the occurrence of any such unauthorized release or other breach | |
| of which it is aware. | |
| In the event that any of the provisions of this Agreement | |
| shall be held by a court or other tribunal of competent jurisdiction to be to | |
| any extent illegal, invalid or unenforceable, such provisions shall be limited | |
| or eliminated to the minimum extent necessary so that this Agreement shall | |
| otherwise remain in full force and effect. | |
| This Agreement shall be governed by | |
| and construed in accordance with the laws of the State of California, without | |
| regard to principles of conflicts of law. | |
| The parties agree that any dispute | |
| regarding the interpretation or validity of this Agreement shall be subject to | |
| the exclusive jurisdiction of the state and federal courts in and for the County | |
| of San Diego, California, and each party hereby agrees to submit to the personal | |
| and exclusive jurisdiction and venue of such courts. | |
| This Agreement supersedes | |
| all prior discussions and writings and constitutes the entire agreement between | |
| the parties with respect to the subject matter hereof. | |
| This Agreement may not | |
| be amended except in an express writing signed by officers of both parties. | |
| No | |
| waiver or modification of this Agreement will be binding upon either party | |
| unless made in writing and signed by a duly authorized representative of such | |
| party and no failure or delay in enforcing any right will be deemed a waiver. | |
| Each party warrants to the other that it is duly authorized to enter | |
| into this Agreement and that the terms of this Agreement are not inconsistent | |
| with any of its respective outstanding contractual obligations. | |
| The execution | |
| and performance of this Agreement does not obligate the parties to enter into | |
| any other agreement or to perform any obligations other than as specified | |
| herein. | |
| IN WITNESS WHEREOF, the parties have executed this Agreement as of the | |
| day and year set forth below. | |
| Date: 3-10-99 | |
| ------------- | |
| COMBICHEM, INC., DUPONT PHARMACEUTICALS COMPANY, | |
| a Delaware corporation a Delaware general partnership | |
| By: /s/ Vicente Anido, Jr. By: /s/ David S. Block | |
| ------------------------- ----------------------- | |
| Vicente Anido, Jr., Ph.D. David S. Block, M.D. | |
| Its: President and Its: Vice President, Product Planning | |
| Chief Executive Officer and Acquisition | |
| 3 | |