Blueprint





 










 


 Exhibit 10.1



 



CONFIDENTIAL DISCLOSURE AGREEMENT


This Confidential Disclosure Agreement
("Agreement")
dated this 1st day of April, 2014,
(the "Effective
Date") is entered into by and
between Sanofi Pasteur Biologics, LLC,
a Delaware limited liability company having a principal place of business at 38 Sidney
Street, Cambridge, Massachusetts 02139 and its Affiliates who agree
to be bound by the terms hereof ("Sanofi
Pasteur") and
Mymetics
Corporation, Delaware registered with address at Route
de
la Comiche
4, CH-1066 Epalinges,
Switzerland ("Company").



1.             Background.
Sanofi Pasteur and Company intend to
engage in discussions regarding a potential business or research
relationship between the parties. In the course of such discussions
and negotiations, it is anticipated that either party may disclose
or deliver to the other party certain of its trade secrets or
confidential or proprietary information. As used in this Agreement,
the party disclosing Confidential Information (as defined below) is
referred to as the "Disclosing
Party" and the party receiving
such Confidential Information is referred to as the
"Receiving
Party." The parties have
entered into this Agreement in order to assure the confidentiality
of such trade secrets and confidential or proprietary information
in accordance with the terms of this Agreement.



2.             Confidential
Information. As used in this
Agreement, the term "Confidential
Information" shall mean all
scientific, technical, trade or business information of either
party, whether disclosed orally or in writing, of a confidential or
proprietary nature, including any portion of analyses,
compilations, forecasts, studies or other documents prepared by
the Disclosing Party which contains
such information. By way of
illustration, but not limitation, Confidential Information may
include inventions, know-how, products, processes, methods,
techniques, assays, formulas, compositions, compounds, projects,
developments, plans, research data, clinical data, financial data,
personnel data, computer programs, customer and supplier lists and
contacts at or knowledge of customers or prospective customers of
Sanofi Pasteur or Company. Confidential Information disclosed in
written or other tangible form shall be clearly marked
"Confidential," and when disclosed in oral, visual or other forms
shall be identified as Confidential Information at the time of
disclosure and confirmed in writing as such within 30 days of
disclosure. Notwithstanding the foregoing, in the event the
Confidential Information is not reduced to writing within 30 days,
the information shall be deemed confidential if it was identified
as confidential at the time of disclosure or if the Receiving Party
should reasonably have known such information was
confidential at the time.



3.             Disclosure
of Confidential Information. Except as expressly permitted in this Section, for
a period of five (5) years from expiration of the Term (as defined
in Section 7 below) or termination of this Agreement, the Receiving
Party shall hold in confidence and shall not directly or indirectly
disclose, communicate or in any way divulge to any person any
Confidential Information, without the prior written consent of the
Disclosing Party. The Receiving Party shall (i) use such
Confidential Information only for the purposes set forth herein or
carrying out any agreement relating to the Confidential Information
that is entered into by the parties, (i) only disclose Confidential
Information to those of its directors, officers, employees, agents
and consultants, and directors, officers, employees, agents and
consultants of its Affiliates who have a need to know such
Confidential Information in the course of the performance of their
duties and who are bound by a written agreement to protect the
confidentiality of such Confidential Information, and (ii) protect
the Disclosing Party's Confidential Information by using the same
degree of care, but no less than a reasonable degree of care, as
the Receiving Party uses to protect its own Confidential
Information. The Receiving Party shall not use or exploit such
Confidential Information for its own benefit or the benefit of
another without the prior written consent of the Disclosing Party.
The Receiving Party shall not provide or grant access to the
Confidential Information to any third party, except Sanofi Pasteur
may disclose Confidential Information received by it under this
Agreement to the U.S. Government for regulatory or evaluation
purposes in accordance with Section 4(e) hereof. As used herein,
"Affiliates" shall mean any corporation or other entity which
controls, is controlled by or is under common control with a party
hereto.


 






 








 








4.          


Limitation on Obligations. The
obligations of the Receiving Party specified in Section 3 above
shall not apply, and the Receiving Party shall have no further
obligations, with respect to any Confidential Information to the
extent the Receiving Party can demonstrate, by clear and convincing
evidence, that such Confidential Information:







(a) was
known or used by the Receiving Party prior to the date of
disclosure to the Receiving Party, as evidenced by the prior
written records of the Receiving Party; or



(b) either
before or after the date of disclosure to the Receiving Party, is
lawfully disclosed to the Receiving Party by an independent,
unaffiliated third party rightfully in possession of the
Confidential Information;



(c) either
before or after the date of disclosure to the Receiving Party,
becomes published or generally known to the public through no fault
or omission on the part of the Receiving Party, but such
inapplicability applies only after such information is published or
becomes generally known;



(d) is
independently developed by the Receiving Party without reliance on
the Confidential Information of the Disclosing Party;
or



(e) is
required to be disclosed by the Receiving Party to comply with
applicable laws or to comply with govemmental regulations;
provided,
the Receiving Party agrees to (i)
promptly notify the Disclosing Party of the existence, terms and
circumstances surrounding such a request prior to any disclosure
occurring so that the Disclosing Party may, with the Receiving
Party's full cooperation, seek an appropriate protective order
and/or waive the Receiving Party's compliance with the provisions
of this Agreement, and (i) if disclosure of such information is
required, disclose only that portion of any requested information
which the Receiving Party is absolutely required to disclose and
cooperate with the Disclosing Party in its efforts to obtain an
order or other reliable assurance that confidential treatment will
be accorded to information that is disclosed.




5.          


Equitable Relief. The Receiving
Party agrees that any breach of this Agreement may cause the
Disclosing Party substantial and irreparable damages and,
therefore, in the event of any such breach, in addition to other
remedies which may be available, the Disclosing Party shall have
the right to seek specific performance and other injunctive and
equitable relief.








6.          


Ownership of Confidential Information. The Receiving Party agrees that the Disclosing
Party (or any third party entrusting its own confidential
information to the Disclosing Party) is and shall remain the
exclusive owner of the Confidential Information disclosed to the
Receiving Party and all patent, copyright, trademark, trade secret,
and other intellectual property rights in such Confidential
Information or arising therefrom. Except as expressly set forth in
this Agreement, no option, license, or conveyance of such rights to
the Receiving Party is granted or implied under this
Agreement.








7.          


Use of Confidential Information. Company acknowledges that Sanofi Pasteur has an
interest in technologies related to therapeutic and prophylactic
vaccines and that Sanofi Pasteur may have in its possession or may
acquire in the future confidential information of its own or
belonging to third parties relating to such technologies. Nothing
herein shall be construed as prohibiting Sanofi Pasteur from using
any such information of its own or from third parties for any
purpose. Furthermore, nothing herein shall be construed as
prohibiting Sanofi Pasteur from using Confidential Information
received from Company for the purpose of comparing Company's
technology to other technologies, provided that Sanofi Pasteur
complies with the obligations of non-disclosure contained
herein.








8.          


Term and Termination. Unless
earlier terminated as set forth below, this Agreement commences on
the Effective Date and shall continue for a period of five years
(the 'Term"). This Agreement may be terminated by either party upon
60 days notice to the other party provided however, the obligation
to maintain the confidentiality of the Confidential Information as
set forth in Section 3 shall survive any such
termination.








9.          


Return of Documents. The
Receiving Party shall upon the request of the Disclosing Party,
return to the Disclosing Party or destroy and certify to Disclosing
Party in writing the destruction of all drawings, documents and
other tangible manifestations of Confidential Information received
by the Receiving Party pursuant to this Agreement (and all copies
and reproductions thereof) and shall not retain any
copies,






 






 








 







extracts, analyses, or other reproductions, in whole or in part, of
such written material, except one copy may be retained by the
Receiving Party's legal counsel for archival purposes
only.



10.           Securities
Regulations. Each party is
aware, and will advise its employees, Affiliates and
representatives who receive Confidential Information, of the
restrictions imposed by the United States or other applicable
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.



4.           Notices.
Any notice or communication required
or permitted to be given or made under this Agreement by one of the
parties hereto to the other shall be in writing and shall be deemed
to have been sufficiently given or made for all purposes if sent by
hand; recognized national overnight courier; confirmed e-mail
transmission; or mailed by certified mail, postage prepaid, return
receipt requested, addressed to such other party at its respective
address as follows:




If to
Company:                                                       


If to Sanofi Pasteur:






	


Mymetics Corporation Route de la Comiche 4



CI-I-1066 Epalinges, Switzerland



Attn: Ronald Kempers



Phone: + 41 21 653 4884



E-mail: ronald.kempers@mymetics.com


 

	


Sanofi Pasteur Biologics, LLC



38 Sidney Street



Cambridge, MA 02139



Attn:                    Legal
Affairs



Phone: (617) 761-4200


 







 


5.           Miscellaneous.



(f) Upon
written notice to the other party, this Agreement may be assigned
by either party to any of its Affiliates or in connection with the
transfer or sale of all or substantially all of the portion of its
business to which this Agreement relates, or in the event of its
merger or consolidation or change in control or similar
transaction. Any other assignment by either party shall require the
other party's prior written consent, which consent shall not be
unreasonably withheld or delayed. Any purported assignment or
attempt to assign, or any delegation or attempt to delegate, in
violation of this subsection (a) shall be void and without effect.
Subject to the foregoing, this Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective
successors and assigns.



(g) Sanofi
Pasteur and Company shall at all times act as independent parties
and nothing contained in this Agreement shall be construed or
implied to create an agency or partnership. Neither party shall
have the authority to contract or incur expenses on behalf of the
other.



(h) If
any one or more of the provisions of this Agreement shall be held
to be invalid, illegal or unenforceable, that provision shall be
stricken and the remainder of this Agreement shall continue in full
force and effect; provided, however,
that the parties shall renegotiate an
acceptable replacement provision so as to accomplish, as nearly as
possible, the original intent of the parties.



(i) Any
disputes or claims arising under this Agreement shall be governed
by the laws of the Commonwealth of Massachusetts, without regard to
any choice of law principles that would dictate the application of
the laws of another jurisdiction.



(j) This
Agreement represents the entire agreement of the parties and
expressly supersedes all previous written and oral communications
between the parties. No amendment, alteration, or modification of
this Agreement shall be valid unless executed in writing by
authorized signatories of both parties. The failure of any party
hereto to insist upon strict performance of any provision of this
Agreement or to exercise any right hereunder will not constitute a
waiver of that or any other provision or right.



	











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IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed in duplicate counterpart original by their duly
authorized representatives to be effective as of the Effective
Date.