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535_nda-17 | 535_nda-17_0 | Q: Receiving Party may create a copy of some Confidential Information in some circumstances.
Text: Exhibit 99.1
CONFIDENTIALITY AGREEMENT
THIS CONFIDENTIALITY AGREEMENT (this “Agreement”) is entered into this 30th day of July, 2012, by and among HF Financial Corp., a Delaware corporation (along with its affiliates, the “Company”), and Jacobs Asset Management, L.L.C. (the “Recipient” or “JAM”). The Company and the Recipient are sometimes referred to in this Agreement individually as a “Party” and collectively as the “Parties.”
RECITALS
A. The Company desires to exchange views and information with JAM, its largest shareholder.
B. The Company intends to provide JAM access to certain non-public, confidential or proprietary information concerning the Company.
C. In order to induce the Company to provide access to the Confidential Information (as hereinafter defined), the Recipient hereby agrees to be bound by the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual promises and covenants set forth, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Certain Definitions. In addition to the terms defined elsewhere in this Agreement, the following terms used in this Agreement shall be construed to have the meanings set forth or referenced below:
The term “Confidential Information” refers to (i) all business or financial information (including business plans, budgets, forecasts and financial projections) of the Company or its subsidiaries (or of others having business relationships with the Company), or concerning the Matter, whether or not marked or otherwise identified as confidential or proprietary, (ii) any other information or materials marked or designated as “confidential” or “proprietary” by the Company at the time of its disclosure to the Recipient and
(iii) any other information or materials that the Company maintains as confidential or that is proprietary to the Company, the nature of which or the circumstances surrounding the disclosure of which would indicate to a reasonable person that such information or materials are confidential or proprietary. The foregoing information and materials shall be “Confidential Information” whether evidenced, transferred or transmitted in writing, orally, visually, electronically or by any other means, and whether disclosed before or after the date of this Agreement. “Confidential Information” shall also include all Derivative Materials.
Notwithstanding anything to the contrary in this Agreement, “Confidential Information” shall not include information that
(A) is or becomes generally available to the public other than
as a result of a breach of this Agreement by the Recipient; or (B) is or becomes available to the Recipient on a non-confidential basis from any source other than the Company or its Representatives, which source has represented to the Recipient (and that the Recipient reasonably believes after due inquiry) that such source is entitled to disclose such information without the Recipient being bound by any obligation of confidentiality, provided that upon the Recipient becoming aware that such information is Confidential Information that the source was not entitled to disclose, this Agreement shall thereafter apply to such Confidential Information.
The term “Derivative Materials” refers to all summaries, analyses, compilations, data, studies or other documents prepared by the Recipient (i) containing, or based in whole or in part on, any Confidential Information provided by the Company or its Representatives, or (ii) reflecting the Recipient’s review of the Company or the Recipient’s interest in the Matter.
The term “Person” refers to any natural person, corporation, limited liability company, partnership, trust or other legal entity. The term “Representatives” refers to a Person’s directors, officers, employees, attorneys, accountants, consultants, financial advisors and other agents and representatives.
The term “Recipient” shall include (i) the Recipient, (ii) its affiliates, subsidiaries, and divisions, (iii) any Person that directly or indirectly, through intermediaries or otherwise, controls or owns a controlling interest in the Recipient and (iv) the Representatives of any of the foregoing Persons.
ARTICLE II
CONFIDENTIALITY
Section 2.1 Non-Disclosure and Non-Use Covenants. As a condition to the Company’s disclosure of the Confidential Information to the Recipient, the Recipient hereby covenants and agrees that all Confidential Information will be kept confidential by the Recipient and will not, without the prior written consent of the Company, be disclosed by the Recipient, in any manner whatsoever, in whole or in part, and will not be used by the Recipient, directly or indirectly, for any purpose other than facilitating discussion with the Company. Moreover, the Recipient agrees to transmit the Confidential Information to only those Representatives who need to know the Confidential Information for the purpose of facilitating the Recipient’s discussion with the Company and who are informed of the confidential nature of the Confidential Information and the terms of this Agreement. The Recipient hereby acknowledges that it is aware, and the Recipient agrees that it will advise its Representatives who are informed as to the matters which are the subject of this Agreement, that (i) the Confidential Information being furnished may contain or may itself be material, non-public information concerning the Company, and (ii) securities laws in the United States prohibit any person who has received material, non-public information concerning the Company or the matters which are the subject of this Agreement from purchasing or selling securities of the Company or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities. The Recipient agrees to not engage, directly or indirectly, in transactions in Company securities while in possession of Confidential
Information, and further agrees that is will be responsible for its compliance with federal and state securities laws. The Recipient will be responsible for any breach of this Agreement by the Recipient or by its Representatives.
Section 2.2 Confidentiality of Discussions. The Recipient will not, without the prior written consent of the Company, disclose the status of any discussions between the Parties, except as may be required by law or by the rules of any recognized stock exchange and then, if circumstances permit, only with prompt advance written notice to the Company. Any disclosure made pursuant to the prior sentence shall be no more extensive than is necessary to meet the minimum requirement imposed on the Person making such disclosure.
Section 2.3 Compelled Disclosure. In the event that the Recipient is requested (by oral questions, interrogatories, requests for information or documents, subpoena, civil investigate demand or similar process) to disclose any part of the Confidential Information, the Recipient shall notify the Company promptly of such request(s), and the documents requested thereby, so that the Company may seek an appropriate protective order and/or waive in writing the Recipient’s obligation not to disclose the Confidential Information. If, in the absence of a protective order or the receipt of a waiver hereunder, the Recipient is nonetheless compelled to disclose all or part of the Confidential Information or else stand liable for contempt or suffer other censure or penalty from any tribunal or governmental or similar authority, the Recipient may disclose such portion of the Confidential Information required to be disclosed without liability hereunder; provided, however, that the Recipient shall deliver to the Company written notice of the Confidential Information to be disclosed as far in advance of its disclosure as is practicable, and shall use commercially reasonable efforts (at the Company’s expense) to obtain an order or other reliable assurance that confidential treatment will be accorded to such portion of the Confidential Information required to be disclosed. Notwithstanding the foregoing, the Recipient may disclose the Confidential Information to any regulatory agency in the normal course of an examination, audit or investigation involving the Recipient.
Section 2.4 Document Disposition. The Confidential Information (except for Derivative Materials), and all copies thereof, will remain the absolute property of the Company and will be returned to the Company or destroyed (and such destruction confirmed in writing by an officer of the Recipient) without retaining any copies thereof immediately upon the Company’s request. Derivative Materials will be immediately destroyed at the request of the Company and such destruction will be confirmed to the Company in writing by an officer of the Recipient.
Section 2.5 Disclaimers. The Recipient acknowledges that neither the Company nor any of its Representatives makes any representation or warranty as to the accuracy or completeness of the Confidential Information. The Recipient agrees that neither the Company nor any of its Representatives shall have any liability to the Recipient as a result of their reliance on the Confidential Information. The Recipient hereby agrees that in no event will the Recipient have or assert any claims whatsoever against the Company or any of the Company’s Representatives relating to or in any way connected with the subject matter of this Agreement.
Section 2.6 Designated Representatives. The Recipient shall have no discussion, correspondence or other contact with the Company or any of its employees, customers or suppliers concerning the Matter except with “Designated Representatives” of the Company. “Designated Representatives” shall mean the Chairman of the Board of Directors of the Company and persons designated by him.
Section 2.7 Survival. The restrictions imposed on the disclosure of Confidential Information shall continue until the lesser of such time as the information disclosed hereunder is no longer Confidential Information and one (1) year from the date first written above, provided, that no such termination shall relieve Recipient from any liability relating to any prior breach of this Agreement.
ARTICLE III
COVENANT OF THE COMPANY
Section 3.1 Information and Access. The Company will provide JAM access to certain non-public, confidential or proprietary information about the Company (the “Confidential Information”) and receive and consider JAM’s input on the financial services industry, market conditions and trends and the Company’s operational performance, opportunities and direction.
ARTICLE IV
TERM AND TERMINATION
Section 4.1 Term. Except as set forth in Article II, this Agreement shall terminate upon the earlier of (i) the Company’s 2012 Annual Meeting of Shareholders or (ii) the Company’s receipt of the notice required under the Company’s bylaws from JAM or its affiliates required to nominate a director for election at a meeting of the Company’s shareholders.
ARTICLE V
MISCELLANEOUS
Section 5.1 Disclosure of Agreement. The parties contemplate that JAM will file with the SEC an amendment to its Schedule 13D with respect to the Company attaching this Agreement and that the Company will file with the SEC a current report on Form 8-K attaching this Agreement.
Section 5.2 Compliance with Securities Laws. As of the date hereof and during the Term of the Agreement, JAM is and will remain in compliance with all applicable state and federal securities laws with regard to its investment in the Company and its rights and responsibilities under this Agreement, including but not limited to, the Securities Act of 1933, the Securities Exchange Act of 1934, and the rules and regulations promulgated thereunder.
Section 5.3 Compliance with Banking Laws. As of the date hereof and during the Term of the Agreement, JAM is and will remain in compliance with all applicable banking laws with regard to its investment in the Company and its rights and responsibilities under this Agreement, including but not limited to, the Bank Holding Company Act of 1956, the National Bank Act, the Federal Deposit Insurance Act, the Bank Merger Act, the Change in Bank Control Act and the Federal Reserve Board, Office of Comptroller of the Currency and Federal Deposit Insurance Corporation regulations thereunder.
Section 5.4 Remedies. The Recipient agrees that due to the nature of this Agreement and the Confidential Information, money damages would not be a sufficient remedy for any breach of this Agreement by the Recipient and that the Company shall be entitled to seek specific performance, injunctive and/or other equitable relief as a remedy for any such breach. Such remedy shall not be deemed to be the exclusive remedy of the Company for any breach by the Recipient of this Agreement, but shall be in addition to all other remedies available to the Company at law or in equity. The Recipient hereby waives any requirement for the securing or posting of any bond in connection with such remedy.
Section 5.5 Expenses. The Parties will pay their own expenses with respect to this Agreement.
Section 5.6 Severability. In the event that any one or more of the provisions contained in this Agreement, or the application thereof in any circumstances, is held invalid, illegal or unenforceable in any respect for any reason, the validity, legality and enforceability of any such provision in every other respect and of the remaining provisions contained in this Agreement shall not be in any way impaired thereby, it being intended that all of the rights and privileges of the Parties hereto shall be enforceable to the fullest extent permitted by law. If any court determines that any of the provisions of this Agreement, or any part thereof, are unenforceable because of the duration or scope of such provision, the duration or scope of such provision, as the case may be, shall be reduced so that such provision becomes enforceable and, in its reduced form, such provision shall then be enforceable and shall be enforced.
Section 5.7 Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of Delaware applicable to agreements made and to be performed within such state, without giving effect to any choice of law principles.
Section 5.8 Miscellaneous. This Agreement constitutes the entire agreement of the Parties with respect to the subject matter hereof and it replaces and supersedes all prior agreements between the Parties. No provision of this Agreement may be waived or amended unless such waiver or amendment is in writing. No failure or delay by the Company in exercising any right, power or privilege under this Agreement shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise of any right, power or privilege hereunder. This Agreement may not be assigned by the Recipient, by operation of law or otherwise, without the Company’s prior written consent.
Section 5.9 Execution. This Agreement may be executed in one or more counterparts, and by facsimile signatures, each of which shall be an original document, and all of which together shall constitute one and the same instrument.
{Remainder of Page Intentionally Left Blank}
IN WITNESS WHEREOF, the Parties have entered into this Agreement as of the date first written above.
COMPANY:
HF Financial Corp.
/s/ Michael Vekich
Name: Michael Vekich
Title: Chairman
RECIPIENT:
JACOBS ASSET MANAGEMENT, LLC
/s/ Sy Jacobs
Name: Sy Jacobs
Title: Managing Member
| Not mentioned |
535_nda-8 | 535_nda-8_0 | Q: Receiving Party shall notify Disclosing Party in case Receiving Party is required by law, regulation or judicial process to disclose any Confidential Information.
Text: Exhibit 99.1
CONFIDENTIALITY AGREEMENT
THIS CONFIDENTIALITY AGREEMENT (this “Agreement”) is entered into this 30th day of July, 2012, by and among HF Financial Corp., a Delaware corporation (along with its affiliates, the “Company”), and Jacobs Asset Management, L.L.C. (the “Recipient” or “JAM”). The Company and the Recipient are sometimes referred to in this Agreement individually as a “Party” and collectively as the “Parties.”
RECITALS
A. The Company desires to exchange views and information with JAM, its largest shareholder.
B. The Company intends to provide JAM access to certain non-public, confidential or proprietary information concerning the Company.
C. In order to induce the Company to provide access to the Confidential Information (as hereinafter defined), the Recipient hereby agrees to be bound by the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual promises and covenants set forth, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Certain Definitions. In addition to the terms defined elsewhere in this Agreement, the following terms used in this Agreement shall be construed to have the meanings set forth or referenced below:
The term “Confidential Information” refers to (i) all business or financial information (including business plans, budgets, forecasts and financial projections) of the Company or its subsidiaries (or of others having business relationships with the Company), or concerning the Matter, whether or not marked or otherwise identified as confidential or proprietary, (ii) any other information or materials marked or designated as “confidential” or “proprietary” by the Company at the time of its disclosure to the Recipient and
(iii) any other information or materials that the Company maintains as confidential or that is proprietary to the Company, the nature of which or the circumstances surrounding the disclosure of which would indicate to a reasonable person that such information or materials are confidential or proprietary. The foregoing information and materials shall be “Confidential Information” whether evidenced, transferred or transmitted in writing, orally, visually, electronically or by any other means, and whether disclosed before or after the date of this Agreement. “Confidential Information” shall also include all Derivative Materials.
Notwithstanding anything to the contrary in this Agreement, “Confidential Information” shall not include information that
(A) is or becomes generally available to the public other than
as a result of a breach of this Agreement by the Recipient; or (B) is or becomes available to the Recipient on a non-confidential basis from any source other than the Company or its Representatives, which source has represented to the Recipient (and that the Recipient reasonably believes after due inquiry) that such source is entitled to disclose such information without the Recipient being bound by any obligation of confidentiality, provided that upon the Recipient becoming aware that such information is Confidential Information that the source was not entitled to disclose, this Agreement shall thereafter apply to such Confidential Information.
The term “Derivative Materials” refers to all summaries, analyses, compilations, data, studies or other documents prepared by the Recipient (i) containing, or based in whole or in part on, any Confidential Information provided by the Company or its Representatives, or (ii) reflecting the Recipient’s review of the Company or the Recipient’s interest in the Matter.
The term “Person” refers to any natural person, corporation, limited liability company, partnership, trust or other legal entity. The term “Representatives” refers to a Person’s directors, officers, employees, attorneys, accountants, consultants, financial advisors and other agents and representatives.
The term “Recipient” shall include (i) the Recipient, (ii) its affiliates, subsidiaries, and divisions, (iii) any Person that directly or indirectly, through intermediaries or otherwise, controls or owns a controlling interest in the Recipient and (iv) the Representatives of any of the foregoing Persons.
ARTICLE II
CONFIDENTIALITY
Section 2.1 Non-Disclosure and Non-Use Covenants. As a condition to the Company’s disclosure of the Confidential Information to the Recipient, the Recipient hereby covenants and agrees that all Confidential Information will be kept confidential by the Recipient and will not, without the prior written consent of the Company, be disclosed by the Recipient, in any manner whatsoever, in whole or in part, and will not be used by the Recipient, directly or indirectly, for any purpose other than facilitating discussion with the Company. Moreover, the Recipient agrees to transmit the Confidential Information to only those Representatives who need to know the Confidential Information for the purpose of facilitating the Recipient’s discussion with the Company and who are informed of the confidential nature of the Confidential Information and the terms of this Agreement. The Recipient hereby acknowledges that it is aware, and the Recipient agrees that it will advise its Representatives who are informed as to the matters which are the subject of this Agreement, that (i) the Confidential Information being furnished may contain or may itself be material, non-public information concerning the Company, and (ii) securities laws in the United States prohibit any person who has received material, non-public information concerning the Company or the matters which are the subject of this Agreement from purchasing or selling securities of the Company or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities. The Recipient agrees to not engage, directly or indirectly, in transactions in Company securities while in possession of Confidential
Information, and further agrees that is will be responsible for its compliance with federal and state securities laws. The Recipient will be responsible for any breach of this Agreement by the Recipient or by its Representatives.
Section 2.2 Confidentiality of Discussions. The Recipient will not, without the prior written consent of the Company, disclose the status of any discussions between the Parties, except as may be required by law or by the rules of any recognized stock exchange and then, if circumstances permit, only with prompt advance written notice to the Company. Any disclosure made pursuant to the prior sentence shall be no more extensive than is necessary to meet the minimum requirement imposed on the Person making such disclosure.
Section 2.3 Compelled Disclosure. In the event that the Recipient is requested (by oral questions, interrogatories, requests for information or documents, subpoena, civil investigate demand or similar process) to disclose any part of the Confidential Information, the Recipient shall notify the Company promptly of such request(s), and the documents requested thereby, so that the Company may seek an appropriate protective order and/or waive in writing the Recipient’s obligation not to disclose the Confidential Information. If, in the absence of a protective order or the receipt of a waiver hereunder, the Recipient is nonetheless compelled to disclose all or part of the Confidential Information or else stand liable for contempt or suffer other censure or penalty from any tribunal or governmental or similar authority, the Recipient may disclose such portion of the Confidential Information required to be disclosed without liability hereunder; provided, however, that the Recipient shall deliver to the Company written notice of the Confidential Information to be disclosed as far in advance of its disclosure as is practicable, and shall use commercially reasonable efforts (at the Company’s expense) to obtain an order or other reliable assurance that confidential treatment will be accorded to such portion of the Confidential Information required to be disclosed. Notwithstanding the foregoing, the Recipient may disclose the Confidential Information to any regulatory agency in the normal course of an examination, audit or investigation involving the Recipient.
Section 2.4 Document Disposition. The Confidential Information (except for Derivative Materials), and all copies thereof, will remain the absolute property of the Company and will be returned to the Company or destroyed (and such destruction confirmed in writing by an officer of the Recipient) without retaining any copies thereof immediately upon the Company’s request. Derivative Materials will be immediately destroyed at the request of the Company and such destruction will be confirmed to the Company in writing by an officer of the Recipient.
Section 2.5 Disclaimers. The Recipient acknowledges that neither the Company nor any of its Representatives makes any representation or warranty as to the accuracy or completeness of the Confidential Information. The Recipient agrees that neither the Company nor any of its Representatives shall have any liability to the Recipient as a result of their reliance on the Confidential Information. The Recipient hereby agrees that in no event will the Recipient have or assert any claims whatsoever against the Company or any of the Company’s Representatives relating to or in any way connected with the subject matter of this Agreement.
Section 2.6 Designated Representatives. The Recipient shall have no discussion, correspondence or other contact with the Company or any of its employees, customers or suppliers concerning the Matter except with “Designated Representatives” of the Company. “Designated Representatives” shall mean the Chairman of the Board of Directors of the Company and persons designated by him.
Section 2.7 Survival. The restrictions imposed on the disclosure of Confidential Information shall continue until the lesser of such time as the information disclosed hereunder is no longer Confidential Information and one (1) year from the date first written above, provided, that no such termination shall relieve Recipient from any liability relating to any prior breach of this Agreement.
ARTICLE III
COVENANT OF THE COMPANY
Section 3.1 Information and Access. The Company will provide JAM access to certain non-public, confidential or proprietary information about the Company (the “Confidential Information”) and receive and consider JAM’s input on the financial services industry, market conditions and trends and the Company’s operational performance, opportunities and direction.
ARTICLE IV
TERM AND TERMINATION
Section 4.1 Term. Except as set forth in Article II, this Agreement shall terminate upon the earlier of (i) the Company’s 2012 Annual Meeting of Shareholders or (ii) the Company’s receipt of the notice required under the Company’s bylaws from JAM or its affiliates required to nominate a director for election at a meeting of the Company’s shareholders.
ARTICLE V
MISCELLANEOUS
Section 5.1 Disclosure of Agreement. The parties contemplate that JAM will file with the SEC an amendment to its Schedule 13D with respect to the Company attaching this Agreement and that the Company will file with the SEC a current report on Form 8-K attaching this Agreement.
Section 5.2 Compliance with Securities Laws. As of the date hereof and during the Term of the Agreement, JAM is and will remain in compliance with all applicable state and federal securities laws with regard to its investment in the Company and its rights and responsibilities under this Agreement, including but not limited to, the Securities Act of 1933, the Securities Exchange Act of 1934, and the rules and regulations promulgated thereunder.
Section 5.3 Compliance with Banking Laws. As of the date hereof and during the Term of the Agreement, JAM is and will remain in compliance with all applicable banking laws with regard to its investment in the Company and its rights and responsibilities under this Agreement, including but not limited to, the Bank Holding Company Act of 1956, the National Bank Act, the Federal Deposit Insurance Act, the Bank Merger Act, the Change in Bank Control Act and the Federal Reserve Board, Office of Comptroller of the Currency and Federal Deposit Insurance Corporation regulations thereunder.
Section 5.4 Remedies. The Recipient agrees that due to the nature of this Agreement and the Confidential Information, money damages would not be a sufficient remedy for any breach of this Agreement by the Recipient and that the Company shall be entitled to seek specific performance, injunctive and/or other equitable relief as a remedy for any such breach. Such remedy shall not be deemed to be the exclusive remedy of the Company for any breach by the Recipient of this Agreement, but shall be in addition to all other remedies available to the Company at law or in equity. The Recipient hereby waives any requirement for the securing or posting of any bond in connection with such remedy.
Section 5.5 Expenses. The Parties will pay their own expenses with respect to this Agreement.
Section 5.6 Severability. In the event that any one or more of the provisions contained in this Agreement, or the application thereof in any circumstances, is held invalid, illegal or unenforceable in any respect for any reason, the validity, legality and enforceability of any such provision in every other respect and of the remaining provisions contained in this Agreement shall not be in any way impaired thereby, it being intended that all of the rights and privileges of the Parties hereto shall be enforceable to the fullest extent permitted by law. If any court determines that any of the provisions of this Agreement, or any part thereof, are unenforceable because of the duration or scope of such provision, the duration or scope of such provision, as the case may be, shall be reduced so that such provision becomes enforceable and, in its reduced form, such provision shall then be enforceable and shall be enforced.
Section 5.7 Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of Delaware applicable to agreements made and to be performed within such state, without giving effect to any choice of law principles.
Section 5.8 Miscellaneous. This Agreement constitutes the entire agreement of the Parties with respect to the subject matter hereof and it replaces and supersedes all prior agreements between the Parties. No provision of this Agreement may be waived or amended unless such waiver or amendment is in writing. No failure or delay by the Company in exercising any right, power or privilege under this Agreement shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise of any right, power or privilege hereunder. This Agreement may not be assigned by the Recipient, by operation of law or otherwise, without the Company’s prior written consent.
Section 5.9 Execution. This Agreement may be executed in one or more counterparts, and by facsimile signatures, each of which shall be an original document, and all of which together shall constitute one and the same instrument.
{Remainder of Page Intentionally Left Blank}
IN WITNESS WHEREOF, the Parties have entered into this Agreement as of the date first written above.
COMPANY:
HF Financial Corp.
/s/ Michael Vekich
Name: Michael Vekich
Title: Chairman
RECIPIENT:
JACOBS ASSET MANAGEMENT, LLC
/s/ Sy Jacobs
Name: Sy Jacobs
Title: Managing Member
| Entailment |
535_nda-13 | 535_nda-13_0 | Q: Receiving Party may acquire information similar to Confidential Information from a third party.
Text: Exhibit 99.1
CONFIDENTIALITY AGREEMENT
THIS CONFIDENTIALITY AGREEMENT (this “Agreement”) is entered into this 30th day of July, 2012, by and among HF Financial Corp., a Delaware corporation (along with its affiliates, the “Company”), and Jacobs Asset Management, L.L.C. (the “Recipient” or “JAM”). The Company and the Recipient are sometimes referred to in this Agreement individually as a “Party” and collectively as the “Parties.”
RECITALS
A. The Company desires to exchange views and information with JAM, its largest shareholder.
B. The Company intends to provide JAM access to certain non-public, confidential or proprietary information concerning the Company.
C. In order to induce the Company to provide access to the Confidential Information (as hereinafter defined), the Recipient hereby agrees to be bound by the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual promises and covenants set forth, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Certain Definitions. In addition to the terms defined elsewhere in this Agreement, the following terms used in this Agreement shall be construed to have the meanings set forth or referenced below:
The term “Confidential Information” refers to (i) all business or financial information (including business plans, budgets, forecasts and financial projections) of the Company or its subsidiaries (or of others having business relationships with the Company), or concerning the Matter, whether or not marked or otherwise identified as confidential or proprietary, (ii) any other information or materials marked or designated as “confidential” or “proprietary” by the Company at the time of its disclosure to the Recipient and
(iii) any other information or materials that the Company maintains as confidential or that is proprietary to the Company, the nature of which or the circumstances surrounding the disclosure of which would indicate to a reasonable person that such information or materials are confidential or proprietary. The foregoing information and materials shall be “Confidential Information” whether evidenced, transferred or transmitted in writing, orally, visually, electronically or by any other means, and whether disclosed before or after the date of this Agreement. “Confidential Information” shall also include all Derivative Materials.
Notwithstanding anything to the contrary in this Agreement, “Confidential Information” shall not include information that
(A) is or becomes generally available to the public other than
as a result of a breach of this Agreement by the Recipient; or (B) is or becomes available to the Recipient on a non-confidential basis from any source other than the Company or its Representatives, which source has represented to the Recipient (and that the Recipient reasonably believes after due inquiry) that such source is entitled to disclose such information without the Recipient being bound by any obligation of confidentiality, provided that upon the Recipient becoming aware that such information is Confidential Information that the source was not entitled to disclose, this Agreement shall thereafter apply to such Confidential Information.
The term “Derivative Materials” refers to all summaries, analyses, compilations, data, studies or other documents prepared by the Recipient (i) containing, or based in whole or in part on, any Confidential Information provided by the Company or its Representatives, or (ii) reflecting the Recipient’s review of the Company or the Recipient’s interest in the Matter.
The term “Person” refers to any natural person, corporation, limited liability company, partnership, trust or other legal entity. The term “Representatives” refers to a Person’s directors, officers, employees, attorneys, accountants, consultants, financial advisors and other agents and representatives.
The term “Recipient” shall include (i) the Recipient, (ii) its affiliates, subsidiaries, and divisions, (iii) any Person that directly or indirectly, through intermediaries or otherwise, controls or owns a controlling interest in the Recipient and (iv) the Representatives of any of the foregoing Persons.
ARTICLE II
CONFIDENTIALITY
Section 2.1 Non-Disclosure and Non-Use Covenants. As a condition to the Company’s disclosure of the Confidential Information to the Recipient, the Recipient hereby covenants and agrees that all Confidential Information will be kept confidential by the Recipient and will not, without the prior written consent of the Company, be disclosed by the Recipient, in any manner whatsoever, in whole or in part, and will not be used by the Recipient, directly or indirectly, for any purpose other than facilitating discussion with the Company. Moreover, the Recipient agrees to transmit the Confidential Information to only those Representatives who need to know the Confidential Information for the purpose of facilitating the Recipient’s discussion with the Company and who are informed of the confidential nature of the Confidential Information and the terms of this Agreement. The Recipient hereby acknowledges that it is aware, and the Recipient agrees that it will advise its Representatives who are informed as to the matters which are the subject of this Agreement, that (i) the Confidential Information being furnished may contain or may itself be material, non-public information concerning the Company, and (ii) securities laws in the United States prohibit any person who has received material, non-public information concerning the Company or the matters which are the subject of this Agreement from purchasing or selling securities of the Company or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities. The Recipient agrees to not engage, directly or indirectly, in transactions in Company securities while in possession of Confidential
Information, and further agrees that is will be responsible for its compliance with federal and state securities laws. The Recipient will be responsible for any breach of this Agreement by the Recipient or by its Representatives.
Section 2.2 Confidentiality of Discussions. The Recipient will not, without the prior written consent of the Company, disclose the status of any discussions between the Parties, except as may be required by law or by the rules of any recognized stock exchange and then, if circumstances permit, only with prompt advance written notice to the Company. Any disclosure made pursuant to the prior sentence shall be no more extensive than is necessary to meet the minimum requirement imposed on the Person making such disclosure.
Section 2.3 Compelled Disclosure. In the event that the Recipient is requested (by oral questions, interrogatories, requests for information or documents, subpoena, civil investigate demand or similar process) to disclose any part of the Confidential Information, the Recipient shall notify the Company promptly of such request(s), and the documents requested thereby, so that the Company may seek an appropriate protective order and/or waive in writing the Recipient’s obligation not to disclose the Confidential Information. If, in the absence of a protective order or the receipt of a waiver hereunder, the Recipient is nonetheless compelled to disclose all or part of the Confidential Information or else stand liable for contempt or suffer other censure or penalty from any tribunal or governmental or similar authority, the Recipient may disclose such portion of the Confidential Information required to be disclosed without liability hereunder; provided, however, that the Recipient shall deliver to the Company written notice of the Confidential Information to be disclosed as far in advance of its disclosure as is practicable, and shall use commercially reasonable efforts (at the Company’s expense) to obtain an order or other reliable assurance that confidential treatment will be accorded to such portion of the Confidential Information required to be disclosed. Notwithstanding the foregoing, the Recipient may disclose the Confidential Information to any regulatory agency in the normal course of an examination, audit or investigation involving the Recipient.
Section 2.4 Document Disposition. The Confidential Information (except for Derivative Materials), and all copies thereof, will remain the absolute property of the Company and will be returned to the Company or destroyed (and such destruction confirmed in writing by an officer of the Recipient) without retaining any copies thereof immediately upon the Company’s request. Derivative Materials will be immediately destroyed at the request of the Company and such destruction will be confirmed to the Company in writing by an officer of the Recipient.
Section 2.5 Disclaimers. The Recipient acknowledges that neither the Company nor any of its Representatives makes any representation or warranty as to the accuracy or completeness of the Confidential Information. The Recipient agrees that neither the Company nor any of its Representatives shall have any liability to the Recipient as a result of their reliance on the Confidential Information. The Recipient hereby agrees that in no event will the Recipient have or assert any claims whatsoever against the Company or any of the Company’s Representatives relating to or in any way connected with the subject matter of this Agreement.
Section 2.6 Designated Representatives. The Recipient shall have no discussion, correspondence or other contact with the Company or any of its employees, customers or suppliers concerning the Matter except with “Designated Representatives” of the Company. “Designated Representatives” shall mean the Chairman of the Board of Directors of the Company and persons designated by him.
Section 2.7 Survival. The restrictions imposed on the disclosure of Confidential Information shall continue until the lesser of such time as the information disclosed hereunder is no longer Confidential Information and one (1) year from the date first written above, provided, that no such termination shall relieve Recipient from any liability relating to any prior breach of this Agreement.
ARTICLE III
COVENANT OF THE COMPANY
Section 3.1 Information and Access. The Company will provide JAM access to certain non-public, confidential or proprietary information about the Company (the “Confidential Information”) and receive and consider JAM’s input on the financial services industry, market conditions and trends and the Company’s operational performance, opportunities and direction.
ARTICLE IV
TERM AND TERMINATION
Section 4.1 Term. Except as set forth in Article II, this Agreement shall terminate upon the earlier of (i) the Company’s 2012 Annual Meeting of Shareholders or (ii) the Company’s receipt of the notice required under the Company’s bylaws from JAM or its affiliates required to nominate a director for election at a meeting of the Company’s shareholders.
ARTICLE V
MISCELLANEOUS
Section 5.1 Disclosure of Agreement. The parties contemplate that JAM will file with the SEC an amendment to its Schedule 13D with respect to the Company attaching this Agreement and that the Company will file with the SEC a current report on Form 8-K attaching this Agreement.
Section 5.2 Compliance with Securities Laws. As of the date hereof and during the Term of the Agreement, JAM is and will remain in compliance with all applicable state and federal securities laws with regard to its investment in the Company and its rights and responsibilities under this Agreement, including but not limited to, the Securities Act of 1933, the Securities Exchange Act of 1934, and the rules and regulations promulgated thereunder.
Section 5.3 Compliance with Banking Laws. As of the date hereof and during the Term of the Agreement, JAM is and will remain in compliance with all applicable banking laws with regard to its investment in the Company and its rights and responsibilities under this Agreement, including but not limited to, the Bank Holding Company Act of 1956, the National Bank Act, the Federal Deposit Insurance Act, the Bank Merger Act, the Change in Bank Control Act and the Federal Reserve Board, Office of Comptroller of the Currency and Federal Deposit Insurance Corporation regulations thereunder.
Section 5.4 Remedies. The Recipient agrees that due to the nature of this Agreement and the Confidential Information, money damages would not be a sufficient remedy for any breach of this Agreement by the Recipient and that the Company shall be entitled to seek specific performance, injunctive and/or other equitable relief as a remedy for any such breach. Such remedy shall not be deemed to be the exclusive remedy of the Company for any breach by the Recipient of this Agreement, but shall be in addition to all other remedies available to the Company at law or in equity. The Recipient hereby waives any requirement for the securing or posting of any bond in connection with such remedy.
Section 5.5 Expenses. The Parties will pay their own expenses with respect to this Agreement.
Section 5.6 Severability. In the event that any one or more of the provisions contained in this Agreement, or the application thereof in any circumstances, is held invalid, illegal or unenforceable in any respect for any reason, the validity, legality and enforceability of any such provision in every other respect and of the remaining provisions contained in this Agreement shall not be in any way impaired thereby, it being intended that all of the rights and privileges of the Parties hereto shall be enforceable to the fullest extent permitted by law. If any court determines that any of the provisions of this Agreement, or any part thereof, are unenforceable because of the duration or scope of such provision, the duration or scope of such provision, as the case may be, shall be reduced so that such provision becomes enforceable and, in its reduced form, such provision shall then be enforceable and shall be enforced.
Section 5.7 Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of Delaware applicable to agreements made and to be performed within such state, without giving effect to any choice of law principles.
Section 5.8 Miscellaneous. This Agreement constitutes the entire agreement of the Parties with respect to the subject matter hereof and it replaces and supersedes all prior agreements between the Parties. No provision of this Agreement may be waived or amended unless such waiver or amendment is in writing. No failure or delay by the Company in exercising any right, power or privilege under this Agreement shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise of any right, power or privilege hereunder. This Agreement may not be assigned by the Recipient, by operation of law or otherwise, without the Company’s prior written consent.
Section 5.9 Execution. This Agreement may be executed in one or more counterparts, and by facsimile signatures, each of which shall be an original document, and all of which together shall constitute one and the same instrument.
{Remainder of Page Intentionally Left Blank}
IN WITNESS WHEREOF, the Parties have entered into this Agreement as of the date first written above.
COMPANY:
HF Financial Corp.
/s/ Michael Vekich
Name: Michael Vekich
Title: Chairman
RECIPIENT:
JACOBS ASSET MANAGEMENT, LLC
/s/ Sy Jacobs
Name: Sy Jacobs
Title: Managing Member
| Entailment |
535_nda-5 | 535_nda-5_0 | Q: Receiving Party may share some Confidential Information with some of Receiving Party's employees.
Text: Exhibit 99.1
CONFIDENTIALITY AGREEMENT
THIS CONFIDENTIALITY AGREEMENT (this “Agreement”) is entered into this 30th day of July, 2012, by and among HF Financial Corp., a Delaware corporation (along with its affiliates, the “Company”), and Jacobs Asset Management, L.L.C. (the “Recipient” or “JAM”). The Company and the Recipient are sometimes referred to in this Agreement individually as a “Party” and collectively as the “Parties.”
RECITALS
A. The Company desires to exchange views and information with JAM, its largest shareholder.
B. The Company intends to provide JAM access to certain non-public, confidential or proprietary information concerning the Company.
C. In order to induce the Company to provide access to the Confidential Information (as hereinafter defined), the Recipient hereby agrees to be bound by the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual promises and covenants set forth, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Certain Definitions. In addition to the terms defined elsewhere in this Agreement, the following terms used in this Agreement shall be construed to have the meanings set forth or referenced below:
The term “Confidential Information” refers to (i) all business or financial information (including business plans, budgets, forecasts and financial projections) of the Company or its subsidiaries (or of others having business relationships with the Company), or concerning the Matter, whether or not marked or otherwise identified as confidential or proprietary, (ii) any other information or materials marked or designated as “confidential” or “proprietary” by the Company at the time of its disclosure to the Recipient and
(iii) any other information or materials that the Company maintains as confidential or that is proprietary to the Company, the nature of which or the circumstances surrounding the disclosure of which would indicate to a reasonable person that such information or materials are confidential or proprietary. The foregoing information and materials shall be “Confidential Information” whether evidenced, transferred or transmitted in writing, orally, visually, electronically or by any other means, and whether disclosed before or after the date of this Agreement. “Confidential Information” shall also include all Derivative Materials.
Notwithstanding anything to the contrary in this Agreement, “Confidential Information” shall not include information that
(A) is or becomes generally available to the public other than
as a result of a breach of this Agreement by the Recipient; or (B) is or becomes available to the Recipient on a non-confidential basis from any source other than the Company or its Representatives, which source has represented to the Recipient (and that the Recipient reasonably believes after due inquiry) that such source is entitled to disclose such information without the Recipient being bound by any obligation of confidentiality, provided that upon the Recipient becoming aware that such information is Confidential Information that the source was not entitled to disclose, this Agreement shall thereafter apply to such Confidential Information.
The term “Derivative Materials” refers to all summaries, analyses, compilations, data, studies or other documents prepared by the Recipient (i) containing, or based in whole or in part on, any Confidential Information provided by the Company or its Representatives, or (ii) reflecting the Recipient’s review of the Company or the Recipient’s interest in the Matter.
The term “Person” refers to any natural person, corporation, limited liability company, partnership, trust or other legal entity. The term “Representatives” refers to a Person’s directors, officers, employees, attorneys, accountants, consultants, financial advisors and other agents and representatives.
The term “Recipient” shall include (i) the Recipient, (ii) its affiliates, subsidiaries, and divisions, (iii) any Person that directly or indirectly, through intermediaries or otherwise, controls or owns a controlling interest in the Recipient and (iv) the Representatives of any of the foregoing Persons.
ARTICLE II
CONFIDENTIALITY
Section 2.1 Non-Disclosure and Non-Use Covenants. As a condition to the Company’s disclosure of the Confidential Information to the Recipient, the Recipient hereby covenants and agrees that all Confidential Information will be kept confidential by the Recipient and will not, without the prior written consent of the Company, be disclosed by the Recipient, in any manner whatsoever, in whole or in part, and will not be used by the Recipient, directly or indirectly, for any purpose other than facilitating discussion with the Company. Moreover, the Recipient agrees to transmit the Confidential Information to only those Representatives who need to know the Confidential Information for the purpose of facilitating the Recipient’s discussion with the Company and who are informed of the confidential nature of the Confidential Information and the terms of this Agreement. The Recipient hereby acknowledges that it is aware, and the Recipient agrees that it will advise its Representatives who are informed as to the matters which are the subject of this Agreement, that (i) the Confidential Information being furnished may contain or may itself be material, non-public information concerning the Company, and (ii) securities laws in the United States prohibit any person who has received material, non-public information concerning the Company or the matters which are the subject of this Agreement from purchasing or selling securities of the Company or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities. The Recipient agrees to not engage, directly or indirectly, in transactions in Company securities while in possession of Confidential
Information, and further agrees that is will be responsible for its compliance with federal and state securities laws. The Recipient will be responsible for any breach of this Agreement by the Recipient or by its Representatives.
Section 2.2 Confidentiality of Discussions. The Recipient will not, without the prior written consent of the Company, disclose the status of any discussions between the Parties, except as may be required by law or by the rules of any recognized stock exchange and then, if circumstances permit, only with prompt advance written notice to the Company. Any disclosure made pursuant to the prior sentence shall be no more extensive than is necessary to meet the minimum requirement imposed on the Person making such disclosure.
Section 2.3 Compelled Disclosure. In the event that the Recipient is requested (by oral questions, interrogatories, requests for information or documents, subpoena, civil investigate demand or similar process) to disclose any part of the Confidential Information, the Recipient shall notify the Company promptly of such request(s), and the documents requested thereby, so that the Company may seek an appropriate protective order and/or waive in writing the Recipient’s obligation not to disclose the Confidential Information. If, in the absence of a protective order or the receipt of a waiver hereunder, the Recipient is nonetheless compelled to disclose all or part of the Confidential Information or else stand liable for contempt or suffer other censure or penalty from any tribunal or governmental or similar authority, the Recipient may disclose such portion of the Confidential Information required to be disclosed without liability hereunder; provided, however, that the Recipient shall deliver to the Company written notice of the Confidential Information to be disclosed as far in advance of its disclosure as is practicable, and shall use commercially reasonable efforts (at the Company’s expense) to obtain an order or other reliable assurance that confidential treatment will be accorded to such portion of the Confidential Information required to be disclosed. Notwithstanding the foregoing, the Recipient may disclose the Confidential Information to any regulatory agency in the normal course of an examination, audit or investigation involving the Recipient.
Section 2.4 Document Disposition. The Confidential Information (except for Derivative Materials), and all copies thereof, will remain the absolute property of the Company and will be returned to the Company or destroyed (and such destruction confirmed in writing by an officer of the Recipient) without retaining any copies thereof immediately upon the Company’s request. Derivative Materials will be immediately destroyed at the request of the Company and such destruction will be confirmed to the Company in writing by an officer of the Recipient.
Section 2.5 Disclaimers. The Recipient acknowledges that neither the Company nor any of its Representatives makes any representation or warranty as to the accuracy or completeness of the Confidential Information. The Recipient agrees that neither the Company nor any of its Representatives shall have any liability to the Recipient as a result of their reliance on the Confidential Information. The Recipient hereby agrees that in no event will the Recipient have or assert any claims whatsoever against the Company or any of the Company’s Representatives relating to or in any way connected with the subject matter of this Agreement.
Section 2.6 Designated Representatives. The Recipient shall have no discussion, correspondence or other contact with the Company or any of its employees, customers or suppliers concerning the Matter except with “Designated Representatives” of the Company. “Designated Representatives” shall mean the Chairman of the Board of Directors of the Company and persons designated by him.
Section 2.7 Survival. The restrictions imposed on the disclosure of Confidential Information shall continue until the lesser of such time as the information disclosed hereunder is no longer Confidential Information and one (1) year from the date first written above, provided, that no such termination shall relieve Recipient from any liability relating to any prior breach of this Agreement.
ARTICLE III
COVENANT OF THE COMPANY
Section 3.1 Information and Access. The Company will provide JAM access to certain non-public, confidential or proprietary information about the Company (the “Confidential Information”) and receive and consider JAM’s input on the financial services industry, market conditions and trends and the Company’s operational performance, opportunities and direction.
ARTICLE IV
TERM AND TERMINATION
Section 4.1 Term. Except as set forth in Article II, this Agreement shall terminate upon the earlier of (i) the Company’s 2012 Annual Meeting of Shareholders or (ii) the Company’s receipt of the notice required under the Company’s bylaws from JAM or its affiliates required to nominate a director for election at a meeting of the Company’s shareholders.
ARTICLE V
MISCELLANEOUS
Section 5.1 Disclosure of Agreement. The parties contemplate that JAM will file with the SEC an amendment to its Schedule 13D with respect to the Company attaching this Agreement and that the Company will file with the SEC a current report on Form 8-K attaching this Agreement.
Section 5.2 Compliance with Securities Laws. As of the date hereof and during the Term of the Agreement, JAM is and will remain in compliance with all applicable state and federal securities laws with regard to its investment in the Company and its rights and responsibilities under this Agreement, including but not limited to, the Securities Act of 1933, the Securities Exchange Act of 1934, and the rules and regulations promulgated thereunder.
Section 5.3 Compliance with Banking Laws. As of the date hereof and during the Term of the Agreement, JAM is and will remain in compliance with all applicable banking laws with regard to its investment in the Company and its rights and responsibilities under this Agreement, including but not limited to, the Bank Holding Company Act of 1956, the National Bank Act, the Federal Deposit Insurance Act, the Bank Merger Act, the Change in Bank Control Act and the Federal Reserve Board, Office of Comptroller of the Currency and Federal Deposit Insurance Corporation regulations thereunder.
Section 5.4 Remedies. The Recipient agrees that due to the nature of this Agreement and the Confidential Information, money damages would not be a sufficient remedy for any breach of this Agreement by the Recipient and that the Company shall be entitled to seek specific performance, injunctive and/or other equitable relief as a remedy for any such breach. Such remedy shall not be deemed to be the exclusive remedy of the Company for any breach by the Recipient of this Agreement, but shall be in addition to all other remedies available to the Company at law or in equity. The Recipient hereby waives any requirement for the securing or posting of any bond in connection with such remedy.
Section 5.5 Expenses. The Parties will pay their own expenses with respect to this Agreement.
Section 5.6 Severability. In the event that any one or more of the provisions contained in this Agreement, or the application thereof in any circumstances, is held invalid, illegal or unenforceable in any respect for any reason, the validity, legality and enforceability of any such provision in every other respect and of the remaining provisions contained in this Agreement shall not be in any way impaired thereby, it being intended that all of the rights and privileges of the Parties hereto shall be enforceable to the fullest extent permitted by law. If any court determines that any of the provisions of this Agreement, or any part thereof, are unenforceable because of the duration or scope of such provision, the duration or scope of such provision, as the case may be, shall be reduced so that such provision becomes enforceable and, in its reduced form, such provision shall then be enforceable and shall be enforced.
Section 5.7 Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of Delaware applicable to agreements made and to be performed within such state, without giving effect to any choice of law principles.
Section 5.8 Miscellaneous. This Agreement constitutes the entire agreement of the Parties with respect to the subject matter hereof and it replaces and supersedes all prior agreements between the Parties. No provision of this Agreement may be waived or amended unless such waiver or amendment is in writing. No failure or delay by the Company in exercising any right, power or privilege under this Agreement shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise of any right, power or privilege hereunder. This Agreement may not be assigned by the Recipient, by operation of law or otherwise, without the Company’s prior written consent.
Section 5.9 Execution. This Agreement may be executed in one or more counterparts, and by facsimile signatures, each of which shall be an original document, and all of which together shall constitute one and the same instrument.
{Remainder of Page Intentionally Left Blank}
IN WITNESS WHEREOF, the Parties have entered into this Agreement as of the date first written above.
COMPANY:
HF Financial Corp.
/s/ Michael Vekich
Name: Michael Vekich
Title: Chairman
RECIPIENT:
JACOBS ASSET MANAGEMENT, LLC
/s/ Sy Jacobs
Name: Sy Jacobs
Title: Managing Member
| Entailment |
535_nda-4 | 535_nda-4_0 | Q: Receiving Party shall not use any Confidential Information for any purpose other than the purposes stated in Agreement.
Text: Exhibit 99.1
CONFIDENTIALITY AGREEMENT
THIS CONFIDENTIALITY AGREEMENT (this “Agreement”) is entered into this 30th day of July, 2012, by and among HF Financial Corp., a Delaware corporation (along with its affiliates, the “Company”), and Jacobs Asset Management, L.L.C. (the “Recipient” or “JAM”). The Company and the Recipient are sometimes referred to in this Agreement individually as a “Party” and collectively as the “Parties.”
RECITALS
A. The Company desires to exchange views and information with JAM, its largest shareholder.
B. The Company intends to provide JAM access to certain non-public, confidential or proprietary information concerning the Company.
C. In order to induce the Company to provide access to the Confidential Information (as hereinafter defined), the Recipient hereby agrees to be bound by the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual promises and covenants set forth, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Certain Definitions. In addition to the terms defined elsewhere in this Agreement, the following terms used in this Agreement shall be construed to have the meanings set forth or referenced below:
The term “Confidential Information” refers to (i) all business or financial information (including business plans, budgets, forecasts and financial projections) of the Company or its subsidiaries (or of others having business relationships with the Company), or concerning the Matter, whether or not marked or otherwise identified as confidential or proprietary, (ii) any other information or materials marked or designated as “confidential” or “proprietary” by the Company at the time of its disclosure to the Recipient and
(iii) any other information or materials that the Company maintains as confidential or that is proprietary to the Company, the nature of which or the circumstances surrounding the disclosure of which would indicate to a reasonable person that such information or materials are confidential or proprietary. The foregoing information and materials shall be “Confidential Information” whether evidenced, transferred or transmitted in writing, orally, visually, electronically or by any other means, and whether disclosed before or after the date of this Agreement. “Confidential Information” shall also include all Derivative Materials.
Notwithstanding anything to the contrary in this Agreement, “Confidential Information” shall not include information that
(A) is or becomes generally available to the public other than
as a result of a breach of this Agreement by the Recipient; or (B) is or becomes available to the Recipient on a non-confidential basis from any source other than the Company or its Representatives, which source has represented to the Recipient (and that the Recipient reasonably believes after due inquiry) that such source is entitled to disclose such information without the Recipient being bound by any obligation of confidentiality, provided that upon the Recipient becoming aware that such information is Confidential Information that the source was not entitled to disclose, this Agreement shall thereafter apply to such Confidential Information.
The term “Derivative Materials” refers to all summaries, analyses, compilations, data, studies or other documents prepared by the Recipient (i) containing, or based in whole or in part on, any Confidential Information provided by the Company or its Representatives, or (ii) reflecting the Recipient’s review of the Company or the Recipient’s interest in the Matter.
The term “Person” refers to any natural person, corporation, limited liability company, partnership, trust or other legal entity. The term “Representatives” refers to a Person’s directors, officers, employees, attorneys, accountants, consultants, financial advisors and other agents and representatives.
The term “Recipient” shall include (i) the Recipient, (ii) its affiliates, subsidiaries, and divisions, (iii) any Person that directly or indirectly, through intermediaries or otherwise, controls or owns a controlling interest in the Recipient and (iv) the Representatives of any of the foregoing Persons.
ARTICLE II
CONFIDENTIALITY
Section 2.1 Non-Disclosure and Non-Use Covenants. As a condition to the Company’s disclosure of the Confidential Information to the Recipient, the Recipient hereby covenants and agrees that all Confidential Information will be kept confidential by the Recipient and will not, without the prior written consent of the Company, be disclosed by the Recipient, in any manner whatsoever, in whole or in part, and will not be used by the Recipient, directly or indirectly, for any purpose other than facilitating discussion with the Company. Moreover, the Recipient agrees to transmit the Confidential Information to only those Representatives who need to know the Confidential Information for the purpose of facilitating the Recipient’s discussion with the Company and who are informed of the confidential nature of the Confidential Information and the terms of this Agreement. The Recipient hereby acknowledges that it is aware, and the Recipient agrees that it will advise its Representatives who are informed as to the matters which are the subject of this Agreement, that (i) the Confidential Information being furnished may contain or may itself be material, non-public information concerning the Company, and (ii) securities laws in the United States prohibit any person who has received material, non-public information concerning the Company or the matters which are the subject of this Agreement from purchasing or selling securities of the Company or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities. The Recipient agrees to not engage, directly or indirectly, in transactions in Company securities while in possession of Confidential
Information, and further agrees that is will be responsible for its compliance with federal and state securities laws. The Recipient will be responsible for any breach of this Agreement by the Recipient or by its Representatives.
Section 2.2 Confidentiality of Discussions. The Recipient will not, without the prior written consent of the Company, disclose the status of any discussions between the Parties, except as may be required by law or by the rules of any recognized stock exchange and then, if circumstances permit, only with prompt advance written notice to the Company. Any disclosure made pursuant to the prior sentence shall be no more extensive than is necessary to meet the minimum requirement imposed on the Person making such disclosure.
Section 2.3 Compelled Disclosure. In the event that the Recipient is requested (by oral questions, interrogatories, requests for information or documents, subpoena, civil investigate demand or similar process) to disclose any part of the Confidential Information, the Recipient shall notify the Company promptly of such request(s), and the documents requested thereby, so that the Company may seek an appropriate protective order and/or waive in writing the Recipient’s obligation not to disclose the Confidential Information. If, in the absence of a protective order or the receipt of a waiver hereunder, the Recipient is nonetheless compelled to disclose all or part of the Confidential Information or else stand liable for contempt or suffer other censure or penalty from any tribunal or governmental or similar authority, the Recipient may disclose such portion of the Confidential Information required to be disclosed without liability hereunder; provided, however, that the Recipient shall deliver to the Company written notice of the Confidential Information to be disclosed as far in advance of its disclosure as is practicable, and shall use commercially reasonable efforts (at the Company’s expense) to obtain an order or other reliable assurance that confidential treatment will be accorded to such portion of the Confidential Information required to be disclosed. Notwithstanding the foregoing, the Recipient may disclose the Confidential Information to any regulatory agency in the normal course of an examination, audit or investigation involving the Recipient.
Section 2.4 Document Disposition. The Confidential Information (except for Derivative Materials), and all copies thereof, will remain the absolute property of the Company and will be returned to the Company or destroyed (and such destruction confirmed in writing by an officer of the Recipient) without retaining any copies thereof immediately upon the Company’s request. Derivative Materials will be immediately destroyed at the request of the Company and such destruction will be confirmed to the Company in writing by an officer of the Recipient.
Section 2.5 Disclaimers. The Recipient acknowledges that neither the Company nor any of its Representatives makes any representation or warranty as to the accuracy or completeness of the Confidential Information. The Recipient agrees that neither the Company nor any of its Representatives shall have any liability to the Recipient as a result of their reliance on the Confidential Information. The Recipient hereby agrees that in no event will the Recipient have or assert any claims whatsoever against the Company or any of the Company’s Representatives relating to or in any way connected with the subject matter of this Agreement.
Section 2.6 Designated Representatives. The Recipient shall have no discussion, correspondence or other contact with the Company or any of its employees, customers or suppliers concerning the Matter except with “Designated Representatives” of the Company. “Designated Representatives” shall mean the Chairman of the Board of Directors of the Company and persons designated by him.
Section 2.7 Survival. The restrictions imposed on the disclosure of Confidential Information shall continue until the lesser of such time as the information disclosed hereunder is no longer Confidential Information and one (1) year from the date first written above, provided, that no such termination shall relieve Recipient from any liability relating to any prior breach of this Agreement.
ARTICLE III
COVENANT OF THE COMPANY
Section 3.1 Information and Access. The Company will provide JAM access to certain non-public, confidential or proprietary information about the Company (the “Confidential Information”) and receive and consider JAM’s input on the financial services industry, market conditions and trends and the Company’s operational performance, opportunities and direction.
ARTICLE IV
TERM AND TERMINATION
Section 4.1 Term. Except as set forth in Article II, this Agreement shall terminate upon the earlier of (i) the Company’s 2012 Annual Meeting of Shareholders or (ii) the Company’s receipt of the notice required under the Company’s bylaws from JAM or its affiliates required to nominate a director for election at a meeting of the Company’s shareholders.
ARTICLE V
MISCELLANEOUS
Section 5.1 Disclosure of Agreement. The parties contemplate that JAM will file with the SEC an amendment to its Schedule 13D with respect to the Company attaching this Agreement and that the Company will file with the SEC a current report on Form 8-K attaching this Agreement.
Section 5.2 Compliance with Securities Laws. As of the date hereof and during the Term of the Agreement, JAM is and will remain in compliance with all applicable state and federal securities laws with regard to its investment in the Company and its rights and responsibilities under this Agreement, including but not limited to, the Securities Act of 1933, the Securities Exchange Act of 1934, and the rules and regulations promulgated thereunder.
Section 5.3 Compliance with Banking Laws. As of the date hereof and during the Term of the Agreement, JAM is and will remain in compliance with all applicable banking laws with regard to its investment in the Company and its rights and responsibilities under this Agreement, including but not limited to, the Bank Holding Company Act of 1956, the National Bank Act, the Federal Deposit Insurance Act, the Bank Merger Act, the Change in Bank Control Act and the Federal Reserve Board, Office of Comptroller of the Currency and Federal Deposit Insurance Corporation regulations thereunder.
Section 5.4 Remedies. The Recipient agrees that due to the nature of this Agreement and the Confidential Information, money damages would not be a sufficient remedy for any breach of this Agreement by the Recipient and that the Company shall be entitled to seek specific performance, injunctive and/or other equitable relief as a remedy for any such breach. Such remedy shall not be deemed to be the exclusive remedy of the Company for any breach by the Recipient of this Agreement, but shall be in addition to all other remedies available to the Company at law or in equity. The Recipient hereby waives any requirement for the securing or posting of any bond in connection with such remedy.
Section 5.5 Expenses. The Parties will pay their own expenses with respect to this Agreement.
Section 5.6 Severability. In the event that any one or more of the provisions contained in this Agreement, or the application thereof in any circumstances, is held invalid, illegal or unenforceable in any respect for any reason, the validity, legality and enforceability of any such provision in every other respect and of the remaining provisions contained in this Agreement shall not be in any way impaired thereby, it being intended that all of the rights and privileges of the Parties hereto shall be enforceable to the fullest extent permitted by law. If any court determines that any of the provisions of this Agreement, or any part thereof, are unenforceable because of the duration or scope of such provision, the duration or scope of such provision, as the case may be, shall be reduced so that such provision becomes enforceable and, in its reduced form, such provision shall then be enforceable and shall be enforced.
Section 5.7 Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of Delaware applicable to agreements made and to be performed within such state, without giving effect to any choice of law principles.
Section 5.8 Miscellaneous. This Agreement constitutes the entire agreement of the Parties with respect to the subject matter hereof and it replaces and supersedes all prior agreements between the Parties. No provision of this Agreement may be waived or amended unless such waiver or amendment is in writing. No failure or delay by the Company in exercising any right, power or privilege under this Agreement shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise of any right, power or privilege hereunder. This Agreement may not be assigned by the Recipient, by operation of law or otherwise, without the Company’s prior written consent.
Section 5.9 Execution. This Agreement may be executed in one or more counterparts, and by facsimile signatures, each of which shall be an original document, and all of which together shall constitute one and the same instrument.
{Remainder of Page Intentionally Left Blank}
IN WITNESS WHEREOF, the Parties have entered into this Agreement as of the date first written above.
COMPANY:
HF Financial Corp.
/s/ Michael Vekich
Name: Michael Vekich
Title: Chairman
RECIPIENT:
JACOBS ASSET MANAGEMENT, LLC
/s/ Sy Jacobs
Name: Sy Jacobs
Title: Managing Member
| Entailment |
536_nda-11 | 536_nda-11_0 | Q: Receiving Party shall not reverse engineer any objects which embody Disclosing Party's Confidential Information.
Text: Exhibit (e)(6)
NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT
This Non-Disclosure and Confidentiality Agreement (this “Agreement”), effective as of November 15, 2012 (“Effective Date”), is made and entered into by and between Online Resources Corporation, a Delaware corporation (“ORCC”), and ACI Worldwide, Inc., a Delaware corporation (“Receiving Party”).
WHEREAS, ORCC and Receiving Party (the “Parties”) wish to explore the possibility of engaging in a potential transaction (a “Transaction”);
WHEREAS, in connection with a possible Transaction, Receiving Party desires to gain access to certain Confidential Information (as such terra is defined below) of ORCC; and
WHEREAS, ORCC is willing to disclose such Confidential Information to Receiving Party upon the terms and subject to the conditions set forth in this Agreement.
NOW THEREFORE, in consideration of the foregoing premises the Parties, intending to be legally bound, agree as follows:
1. Confidential Information: Scope.
(a) As used in this Agreement, “Confidential Information” means and includes any and all confidential and/or proprietary information and data, whether in written, tangible, intangible, digital, electronic or oral form, that is disclosed or made available by or on behalf of ORCC to Receiving Party or its Representatives, including without limitation all record-bearing media containing or disclosing such information, relating to the business or operations of ORCC, or is derived therefrom, and includes (without limitation), any and all: (i) non-public, confidential and/or proprietary information of any third party in the possession of ORCC; (ii) ORCC trade secrets, techniques, discoveries, ideas, inventions, concepts, software in various states of development, designs, drawings, images, specifications, data, diagrams, research, economic and financial analyses, strategic plans and analyses, marketing and advertising techniques, client (or customer) and vendor names, client data, new product launches, price data, sales data, personnel files and materials, and all record-bearing media containing or disclosing such information; (iii) all identifiable and/or sensitive “personal information” (as such term is defined in the federal Gramm-Leach-Bliley Act of 1999, as amended) of end users of ORCC’s services, without specific designation as such (including, but not limited to, names, addresses, social security numbers, account numbers and account balances), and all record-bearing media containing or disclosing such information; and (iv) financial information, including (if provided) financial forecasts, projections or plans. All such information shall be treated as ORCC’s Confidential Information under this Agreement regardless of whether or not it is marked or identified as “Confidential Information.” Except as provided in Section 4, neither Party shall announce, disclose or publicize in any manner this Agreement, the terms, or any discussions or negotiations covered by or relating to this Agreement (including with respect to any Transaction) without the prior written consent of the other Party.
(b) As used in this Agreement, “Confidential Information” specifically excludes any information that: (i) has been or becomes publicly available or is now, or in the future, in the public domain in each case without any breach of this Agreement; (ii) prior to disclosure to Receiving Party hereunder, is within the possession of Receiving Party without any obligation of confidentiality; (iii) subsequent to disclosure hereunder, is lawfully received from a third party having rights therein without restriction of such third party’s or Receiving Party’s right to disseminate such information, and without notice of any restriction against its further disclosure; or (iv) is independently developed by Receiving Party by way of persons or entities which have not used, referenced or had access to (directly or indirectly) Confidential Information.
(c) ALL CONFIDENTIAL INFORMATION PROVIDED BY ORCC UNDER THIS AGREEMENT IS PROVIDED “AS IS”. ORCC MAKES ABSOLUTELY NO REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS, IMPLIED OR OTHERWISE, REGARDING THE ACCURACY, COMPLETENESS OR UTILITY OF ANY CONFIDENTIAL INFORMATION.
2. Use. Restriction of Confidential Information. ORCC will disclose certain Confidential Information to Receiving Party solely for the mutually acknowledged purpose recited above, and Receiving Party shall use such Confidential Information only for such purpose. Except to the extent expressly permitted under this Agreement, Receiving Party shall not disclose, disseminate or cause or permit any disclosure or unauthorized use of any Confidential Information, nor shall Receiving Party make any copies, reproductions, summaries or excerpts of any Confidential Information. Receiving Party shall not use any Confidential Information, including, without limitation, any Technical Information, as a basis for developing, marketing or providing products or services that compete (whether directly or indirectly) with the products or services that ORCC sells, markets or provides to its customers. Receiving Party shall at all times protect Confidential Information, using at minimum those measures that it takes to protect its own Confidential Information of a similar nature (provided that such measures are consistent with at least a reasonable degree of care); provided, however, that nothing herein shall relieve Receiving Party of its liability for unauthorized disclosure or use of Confidential Information. In the event Receiving Party loses or causes an unauthorized disclosure of Confidential Information, it will notify ORCC promptly after becoming aware of such disclosure, and will use commercially reasonable efforts to secure the retrieval and return of such Confidential Information. Any delay or failure by ORCC to enforce its rights in the event of any breach of this Agreement shall not be construed to constitute a waiver or release of its rights with respect to such breach or any subsequent breach.
3. Permitted Disclosure. Receiving Party may only disclose Confidential Information provided to it by ORCC hereunder to Receiving Party’s officers, directors, subsidiaries, affiliates, employees, legal counsel, financial advisors and other duly authorized agents and consultants (its “Representatives”) each of whom Receiving Party reasonably determines need to know such Confidential Information for the purpose of assisting the Receiving Party in its evaluation of a Transaction as set forth in this Agreement; provided, however, that Receiving Party shall, prior to disclosing Confidential Information to one or more Representatives in each instance, inform such Representatives of the confidential nature of the Confidential Information and instruct them to maintain the confidentiality of such Confidential Information in a manner consistent with the terms and conditions of this Agreement.
4. Required Disclosure. Except as provided elsewhere in this Section 4, if a Party determines in good faith that it is required under applicable law or legal process to disclose any Confidential Information of a type referred to in clauses (i), (ii), (iii) or (iv) of Section 1(a) (such Confidential Information “Technical Information”), such Party shall give the other Party prompt notice of such fact so that the other Party may obtain a protective order or any other appropriate remedy concerning any such disclosure and/or waive compliance with the nondisclosure requirements of this Agreement. The disclosing Party will reasonably cooperate with the other Party in connection with the other Party’s efforts to obtain any such order or other remedy. If any such order or other remedy does not fully preclude disclosure, or if the other Party waives such compliance, the disclosing Party may make such disclosure, to the extent that the disclosing Party determines in good faith that such disclosure is required under applicable law or legal process, and the disclosing Party will use its best efforts to have confidential treatment accorded to the disclosed Confidential Information. Notwithstanding the foregoing, the Receiving Party may publicly disclose (i) Confidential Information of the type set forth in clause (iv) of Section 1 (a) above and (ii) the fact that the Parties are or have been discussing a proposed Transaction and/or the terms of such proposed Transaction, in each case, only if and to the extent that the Receiving Party determines in good faith based on an opinion of legal counsel that it is required to do so under applicable law or subpoena or other legal process in connection with a Transaction, provided that the Receiving Party furnishes a copy of the proposed disclosure ORCC not less than five business days prior to such disclosure (unless the disclosing Party determines in good faith that it is not reasonably practicable to give such advance notice) and considers in good faith ORCC’s comments on such proposed disclosure. For the avoidance of doubt, this Agreement is not intended to restrict Receiving Party from making any public or private proposal or offer to acquire ORCC or its securities for all cash consideration, or from making such public disclosure in connection therewith as Receiving Party may determine in good faith based on an opinion of legal counsel to be required in accordance with the preceding sentence. Notwithstanding the foregoing, ORCC may publicly disclose the fact that the Parties are or have been discussing a proposed Transaction and/or the terms of such proposed Transaction only if and to the extent that it determines in good faith that it is required to do so under applicable law or legal process in connection with a Transaction, provided that ORCC gives the Receiving Party notice thereof three business days prior to such disclosure unless ORCC determines in good faith that it is not reasonably practicable to give such advance notice.
5. Term of Obligations: Return of Confidential Information. This Agreement shall control and govern all Confidential Information disclosed by ORCC to Receiving Party from and after the Effective Date (as defined above) for a period of one (1) year (the “Term”) unless earlier terminated by the Parties in a separate agreement or instrument executed by both Parties. Promptly upon the expiration or termination of this Agreement, or with respect to Technical Information only, upon. ORCC’s reasonable written request, Receiving Party shall return or destroy all written material (if any) containing or reflecting any Confidential Information. Receiving Party shall direct its Representatives to promptly undertake the same measures described in the preceding sentence. In the event Receiving Party elects to destroy Confidential Information, Receiving Party shall provide ORCC with written certification of such destruction executed by Receiving Party’s officer who supervised such destruction. Notwithstanding the foregoing, Receiving Party may retain only such copies of Confidential Information, subject to the terms and conditions hereunder, as may be necessary or required in accordance with Receiving Party’s internal records retention policies and procedures for applicable legal, compliance and regulatory purposes, provided that counsel to Receiving Party may retain copies of Confidential Information of a type set forth in clause (iv) of Section 1(a) hereof as it determines in good faith to be necessary to advise
Receiving Party in connection with any disclosure permitted by Section 4 hereof provided that all such Confidential Information shall remain subject to the provisions of this Agreement for so long as such information is retained notwithstanding any time limitations set forth in this Agreement, Receiving Party’s obligations to protect Confidential Information received during the Term shall survive and continue for 1 year from and after the Effective Date; provided, however, that (i) Receiving Party’s obligations with respect to Confidential Information that constitutes a trade secret under applicable law shall survive and continue for the longer of 1 year or as long as the same remains a trade secret under applicable law and (ii) this Section 5 will not apply to any information that Receiving Party or its Representatives has previously disclosed as permitted by this Agreement.
6. Ownership of Confidential Information. ORCC owns and shall retain all right, title and interest in and to all Confidential Information, regardless of disclosure hereunder. Absolutely no present or future patent, copyright, trademark, trade secret right or other intellectual property right, nor any right, license, title or interest of any kind, is given, granted, transferred or otherwise conveyed by or under this Agreement with respect to any Confidential Information. Receiving Party shall not reverse-engineer, decompile or disassemble any software disclosed under this Agreement and shall not remove, overprint or change any notice, including as to ownership or confidentiality from any originals or copies of Confidential Information.
7. Equitable Relief. Each Party acknowledges and agrees that a breach of any of its obligations hereunder could cause serious and irreparable harm to the other Party that could not adequately be compensated by monetary damages. Accordingly each Party agrees that, in addition to any of remedies to which the other Party may be entitled at law or in equity, each Party shall be entitled to seek an injunction or injunctions to compel specific performance.
8. Definitive Agreement. Nothing contained in this Agreement binds, commits or imposes any obligation upon either Party to pursue or consummate a Transaction, or to enter into any negotiation or agreement regarding a Transaction or any other business relationship. Unless and until the Parties execute and enter into a separate written, agreement that by its terms is expressly intended to be definitive and mutually binding, neither Party shall be under any obligation of any kind with respect to a Transaction, whether by virtue of this Agreement or any written or oral expression with respect to a Transaction by any person.
9. Further Restrictions.
Each Party hereby acknowledges that the stock of ORCC is publicly traded on the NASDAQ Exchange and that federal securities laws prohibit persons in possession of material non-public information and may, depending on the circumstances, prohibit purchasing or selling the stock of ORCC unless such information is publicly disclosed.
10. Non-Solicitation. For one (1) year from the Effective Date, Receiving Party (including its subsidiaries and affiliates) shall not directly or indirectly solicit, hire or engage ORCC’s employees with whom Receiving Party comes into contact, or of whom it becomes aware, in connection with this Agreement or a Transaction and whose annual base salary from ORCC exceeds $150,000, except with ORCC’s prior written consent; provided, however, that the foregoing restriction shall not apply to the hiring of ORCC’s employees who may respond to internet or other advertisements of general circulation and not specifically targeted at such employees or any action in which no Representative of Receiving Party is involved or aware of the existence of this Agreement or discussions of a possible Transaction.
11. Notice. Any notice which may or is required to be given pursuant to this Agreement shall be in writing and shall be sufficiently given or made if (a) emailed or sent by fax, (b) sent via nationally recognized overnight courier, or (c) served personally upon the Party for whom it is intended, and in each event shall be addressed to the President, Chief Executive Officer or General Counsel of the other Party at its notice address provided under its signature below. The date of receipt of any notice under this Agreement shall be as follows: (i) if served personally, on the date of delivery thereof; (ii) if sent by overnight courier, on the next business day after transmission; and (iii) if emailed or sent by fax, on the next business day after dispatch.
12. No Waiver. No failure or delay by a Party in exercising any of its rights shall operate as a waiver thereof, and no single or partial exercise of any right will preclude any other or further exercise thereof.
13. Severability. In the event that any provision or portion of this Agreement is determined to be invalid or unenforceable for any reason, in whole or in part, the remaining provisions of this Agreement shall be unaffected thereby and shall remain in full force and effect to the fullest extent permitted by applicable law.
14. Restrictions on. Export. A Receiving Party will not export, directly or indirectly, any technical data acquired from the Disclosing Party or any product utilizing any such data to any country for which the U.S. government or any agency thereof at the time of export requires an export license or other governmental approval, without-first obtaining (in each instance) such license or approval and only after receiving express authorization from the Disclosing Party.
15. Governing Law: Venue. The validity, construction and performance of this Agreement shall be governed by, and construed and enforced in accordance with, the applicable laws of the State of Delaware without regard to that state’s principles regarding conflict of laws or choice of laws. Each Party hereby consents, further, to the appropriate state or federal district court in Wilmington, Delaware as the proper venue and jurisdiction for the determination of any rights and the resolution of any disputes arising under or as a result of this Agreement. Nothing in this Agreement prohibits a Party from seeking specific performance, injunctive, other equitable relief, and/or damages as a remedy for a breach or threatened breach of this Agreement. The prevailing Party in any arbitration, litigation or other legal proceeding arising out of, or relating to, this Agreement shall be entitled to recover from the other Party (in addition to other relief awarded or granted) its reasonable costs and expenses, including related attorneys fees in the amount determined by the appropriate arbitrator, trial court or appellate court.
16. Entire Agreement: General Terms. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and merges and supersedes all prior and contemporaneous negotiations, discussion, memoranda and agreements pertaining thereto. Nothing in this Agreement is intended to create or shall be construed as creating an employer-employee relationship or any partnership, agency, joint venture or similar relationship with any person. This Agreement shall not be amended, modified or canceled except in a written instrument executed by both Parties. Both Parties actively participated in the preparation and negotiation of this Agreement, and accordingly, this Agreement shall be interpreted and governed without regard as to which Party principally drafted this Agreement. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original instrument.
IN WITNESS WHEREOF, the Parties have entered into this Agreement effective as of the Effective Date defined above:
Online Resources Corporation ACI Worldwide, Inc.
By: /s/ Joseph L. Cowan By: /s/ Dennis P. Byrnes
Joseph L. Cowan Name:Dennis P. Byrnes
President and CEO Title: Executive Vice President
Notice Address: Notice Address:
4795 Meadow Wood Lane 6060 Coventry Drive
Chantilly, VA 20151 Elkhorn, NE 68022
Email: [email protected] Email: [email protected]
Fax: 703.653.2605 Fax: 402.778.2567
JOINDER AGREEMENT
By executing this Joinder Agreement, PricewaterhouseCoopers (the “Joining Party”), hereby irrevocably agrees, effective as of the date hereof, to become a party to the Non-Disclosure and Confidentiality Agreement (the “Confidentiality Agreement”), dated November 15, 2012, between Online Resources Corporation and ACI Worldwide, Inc. (“ACIW”). as if it were the “Receiving Party” (as therein defined). Without limiting the foregoing, the Joining Party hereby acknowledges and agrees that (1) it has been furnished a copy of the Confidentiality Agreement and (2) the Joining Party will observe all obligations of a “Receiving Party” there under. Upon execution and delivery of this Joinder Agreement, the obligations of ACIW and PricewaterhouseCoopers will be several and neither of them will have any liability for breaches thereof by the other or the other’s agents.
Dated: January 4, 2013 PricewaterhouseCoopers
By: /s/ Sanjay Subramanian
Name: Sanjay Subramanian
Title: Principal
Accepted by:
ONLINE RESOURCES CORPORATION
By: /s/ Thomas Ball
Name: Thomas Ball
Title: VP & General Counsel
ACI WORLDWIDE, INC.
By: /s/ Dennis Byrnes
Name: Dennis Byrnes
Title: EVP
| Entailment |
536_nda-16 | 536_nda-16_0 | Q: Receiving Party shall destroy or return some Confidential Information upon the termination of Agreement.
Text: Exhibit (e)(6)
NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT
This Non-Disclosure and Confidentiality Agreement (this “Agreement”), effective as of November 15, 2012 (“Effective Date”), is made and entered into by and between Online Resources Corporation, a Delaware corporation (“ORCC”), and ACI Worldwide, Inc., a Delaware corporation (“Receiving Party”).
WHEREAS, ORCC and Receiving Party (the “Parties”) wish to explore the possibility of engaging in a potential transaction (a “Transaction”);
WHEREAS, in connection with a possible Transaction, Receiving Party desires to gain access to certain Confidential Information (as such terra is defined below) of ORCC; and
WHEREAS, ORCC is willing to disclose such Confidential Information to Receiving Party upon the terms and subject to the conditions set forth in this Agreement.
NOW THEREFORE, in consideration of the foregoing premises the Parties, intending to be legally bound, agree as follows:
1. Confidential Information: Scope.
(a) As used in this Agreement, “Confidential Information” means and includes any and all confidential and/or proprietary information and data, whether in written, tangible, intangible, digital, electronic or oral form, that is disclosed or made available by or on behalf of ORCC to Receiving Party or its Representatives, including without limitation all record-bearing media containing or disclosing such information, relating to the business or operations of ORCC, or is derived therefrom, and includes (without limitation), any and all: (i) non-public, confidential and/or proprietary information of any third party in the possession of ORCC; (ii) ORCC trade secrets, techniques, discoveries, ideas, inventions, concepts, software in various states of development, designs, drawings, images, specifications, data, diagrams, research, economic and financial analyses, strategic plans and analyses, marketing and advertising techniques, client (or customer) and vendor names, client data, new product launches, price data, sales data, personnel files and materials, and all record-bearing media containing or disclosing such information; (iii) all identifiable and/or sensitive “personal information” (as such term is defined in the federal Gramm-Leach-Bliley Act of 1999, as amended) of end users of ORCC’s services, without specific designation as such (including, but not limited to, names, addresses, social security numbers, account numbers and account balances), and all record-bearing media containing or disclosing such information; and (iv) financial information, including (if provided) financial forecasts, projections or plans. All such information shall be treated as ORCC’s Confidential Information under this Agreement regardless of whether or not it is marked or identified as “Confidential Information.” Except as provided in Section 4, neither Party shall announce, disclose or publicize in any manner this Agreement, the terms, or any discussions or negotiations covered by or relating to this Agreement (including with respect to any Transaction) without the prior written consent of the other Party.
(b) As used in this Agreement, “Confidential Information” specifically excludes any information that: (i) has been or becomes publicly available or is now, or in the future, in the public domain in each case without any breach of this Agreement; (ii) prior to disclosure to Receiving Party hereunder, is within the possession of Receiving Party without any obligation of confidentiality; (iii) subsequent to disclosure hereunder, is lawfully received from a third party having rights therein without restriction of such third party’s or Receiving Party’s right to disseminate such information, and without notice of any restriction against its further disclosure; or (iv) is independently developed by Receiving Party by way of persons or entities which have not used, referenced or had access to (directly or indirectly) Confidential Information.
(c) ALL CONFIDENTIAL INFORMATION PROVIDED BY ORCC UNDER THIS AGREEMENT IS PROVIDED “AS IS”. ORCC MAKES ABSOLUTELY NO REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS, IMPLIED OR OTHERWISE, REGARDING THE ACCURACY, COMPLETENESS OR UTILITY OF ANY CONFIDENTIAL INFORMATION.
2. Use. Restriction of Confidential Information. ORCC will disclose certain Confidential Information to Receiving Party solely for the mutually acknowledged purpose recited above, and Receiving Party shall use such Confidential Information only for such purpose. Except to the extent expressly permitted under this Agreement, Receiving Party shall not disclose, disseminate or cause or permit any disclosure or unauthorized use of any Confidential Information, nor shall Receiving Party make any copies, reproductions, summaries or excerpts of any Confidential Information. Receiving Party shall not use any Confidential Information, including, without limitation, any Technical Information, as a basis for developing, marketing or providing products or services that compete (whether directly or indirectly) with the products or services that ORCC sells, markets or provides to its customers. Receiving Party shall at all times protect Confidential Information, using at minimum those measures that it takes to protect its own Confidential Information of a similar nature (provided that such measures are consistent with at least a reasonable degree of care); provided, however, that nothing herein shall relieve Receiving Party of its liability for unauthorized disclosure or use of Confidential Information. In the event Receiving Party loses or causes an unauthorized disclosure of Confidential Information, it will notify ORCC promptly after becoming aware of such disclosure, and will use commercially reasonable efforts to secure the retrieval and return of such Confidential Information. Any delay or failure by ORCC to enforce its rights in the event of any breach of this Agreement shall not be construed to constitute a waiver or release of its rights with respect to such breach or any subsequent breach.
3. Permitted Disclosure. Receiving Party may only disclose Confidential Information provided to it by ORCC hereunder to Receiving Party’s officers, directors, subsidiaries, affiliates, employees, legal counsel, financial advisors and other duly authorized agents and consultants (its “Representatives”) each of whom Receiving Party reasonably determines need to know such Confidential Information for the purpose of assisting the Receiving Party in its evaluation of a Transaction as set forth in this Agreement; provided, however, that Receiving Party shall, prior to disclosing Confidential Information to one or more Representatives in each instance, inform such Representatives of the confidential nature of the Confidential Information and instruct them to maintain the confidentiality of such Confidential Information in a manner consistent with the terms and conditions of this Agreement.
4. Required Disclosure. Except as provided elsewhere in this Section 4, if a Party determines in good faith that it is required under applicable law or legal process to disclose any Confidential Information of a type referred to in clauses (i), (ii), (iii) or (iv) of Section 1(a) (such Confidential Information “Technical Information”), such Party shall give the other Party prompt notice of such fact so that the other Party may obtain a protective order or any other appropriate remedy concerning any such disclosure and/or waive compliance with the nondisclosure requirements of this Agreement. The disclosing Party will reasonably cooperate with the other Party in connection with the other Party’s efforts to obtain any such order or other remedy. If any such order or other remedy does not fully preclude disclosure, or if the other Party waives such compliance, the disclosing Party may make such disclosure, to the extent that the disclosing Party determines in good faith that such disclosure is required under applicable law or legal process, and the disclosing Party will use its best efforts to have confidential treatment accorded to the disclosed Confidential Information. Notwithstanding the foregoing, the Receiving Party may publicly disclose (i) Confidential Information of the type set forth in clause (iv) of Section 1 (a) above and (ii) the fact that the Parties are or have been discussing a proposed Transaction and/or the terms of such proposed Transaction, in each case, only if and to the extent that the Receiving Party determines in good faith based on an opinion of legal counsel that it is required to do so under applicable law or subpoena or other legal process in connection with a Transaction, provided that the Receiving Party furnishes a copy of the proposed disclosure ORCC not less than five business days prior to such disclosure (unless the disclosing Party determines in good faith that it is not reasonably practicable to give such advance notice) and considers in good faith ORCC’s comments on such proposed disclosure. For the avoidance of doubt, this Agreement is not intended to restrict Receiving Party from making any public or private proposal or offer to acquire ORCC or its securities for all cash consideration, or from making such public disclosure in connection therewith as Receiving Party may determine in good faith based on an opinion of legal counsel to be required in accordance with the preceding sentence. Notwithstanding the foregoing, ORCC may publicly disclose the fact that the Parties are or have been discussing a proposed Transaction and/or the terms of such proposed Transaction only if and to the extent that it determines in good faith that it is required to do so under applicable law or legal process in connection with a Transaction, provided that ORCC gives the Receiving Party notice thereof three business days prior to such disclosure unless ORCC determines in good faith that it is not reasonably practicable to give such advance notice.
5. Term of Obligations: Return of Confidential Information. This Agreement shall control and govern all Confidential Information disclosed by ORCC to Receiving Party from and after the Effective Date (as defined above) for a period of one (1) year (the “Term”) unless earlier terminated by the Parties in a separate agreement or instrument executed by both Parties. Promptly upon the expiration or termination of this Agreement, or with respect to Technical Information only, upon. ORCC’s reasonable written request, Receiving Party shall return or destroy all written material (if any) containing or reflecting any Confidential Information. Receiving Party shall direct its Representatives to promptly undertake the same measures described in the preceding sentence. In the event Receiving Party elects to destroy Confidential Information, Receiving Party shall provide ORCC with written certification of such destruction executed by Receiving Party’s officer who supervised such destruction. Notwithstanding the foregoing, Receiving Party may retain only such copies of Confidential Information, subject to the terms and conditions hereunder, as may be necessary or required in accordance with Receiving Party’s internal records retention policies and procedures for applicable legal, compliance and regulatory purposes, provided that counsel to Receiving Party may retain copies of Confidential Information of a type set forth in clause (iv) of Section 1(a) hereof as it determines in good faith to be necessary to advise
Receiving Party in connection with any disclosure permitted by Section 4 hereof provided that all such Confidential Information shall remain subject to the provisions of this Agreement for so long as such information is retained notwithstanding any time limitations set forth in this Agreement, Receiving Party’s obligations to protect Confidential Information received during the Term shall survive and continue for 1 year from and after the Effective Date; provided, however, that (i) Receiving Party’s obligations with respect to Confidential Information that constitutes a trade secret under applicable law shall survive and continue for the longer of 1 year or as long as the same remains a trade secret under applicable law and (ii) this Section 5 will not apply to any information that Receiving Party or its Representatives has previously disclosed as permitted by this Agreement.
6. Ownership of Confidential Information. ORCC owns and shall retain all right, title and interest in and to all Confidential Information, regardless of disclosure hereunder. Absolutely no present or future patent, copyright, trademark, trade secret right or other intellectual property right, nor any right, license, title or interest of any kind, is given, granted, transferred or otherwise conveyed by or under this Agreement with respect to any Confidential Information. Receiving Party shall not reverse-engineer, decompile or disassemble any software disclosed under this Agreement and shall not remove, overprint or change any notice, including as to ownership or confidentiality from any originals or copies of Confidential Information.
7. Equitable Relief. Each Party acknowledges and agrees that a breach of any of its obligations hereunder could cause serious and irreparable harm to the other Party that could not adequately be compensated by monetary damages. Accordingly each Party agrees that, in addition to any of remedies to which the other Party may be entitled at law or in equity, each Party shall be entitled to seek an injunction or injunctions to compel specific performance.
8. Definitive Agreement. Nothing contained in this Agreement binds, commits or imposes any obligation upon either Party to pursue or consummate a Transaction, or to enter into any negotiation or agreement regarding a Transaction or any other business relationship. Unless and until the Parties execute and enter into a separate written, agreement that by its terms is expressly intended to be definitive and mutually binding, neither Party shall be under any obligation of any kind with respect to a Transaction, whether by virtue of this Agreement or any written or oral expression with respect to a Transaction by any person.
9. Further Restrictions.
Each Party hereby acknowledges that the stock of ORCC is publicly traded on the NASDAQ Exchange and that federal securities laws prohibit persons in possession of material non-public information and may, depending on the circumstances, prohibit purchasing or selling the stock of ORCC unless such information is publicly disclosed.
10. Non-Solicitation. For one (1) year from the Effective Date, Receiving Party (including its subsidiaries and affiliates) shall not directly or indirectly solicit, hire or engage ORCC’s employees with whom Receiving Party comes into contact, or of whom it becomes aware, in connection with this Agreement or a Transaction and whose annual base salary from ORCC exceeds $150,000, except with ORCC’s prior written consent; provided, however, that the foregoing restriction shall not apply to the hiring of ORCC’s employees who may respond to internet or other advertisements of general circulation and not specifically targeted at such employees or any action in which no Representative of Receiving Party is involved or aware of the existence of this Agreement or discussions of a possible Transaction.
11. Notice. Any notice which may or is required to be given pursuant to this Agreement shall be in writing and shall be sufficiently given or made if (a) emailed or sent by fax, (b) sent via nationally recognized overnight courier, or (c) served personally upon the Party for whom it is intended, and in each event shall be addressed to the President, Chief Executive Officer or General Counsel of the other Party at its notice address provided under its signature below. The date of receipt of any notice under this Agreement shall be as follows: (i) if served personally, on the date of delivery thereof; (ii) if sent by overnight courier, on the next business day after transmission; and (iii) if emailed or sent by fax, on the next business day after dispatch.
12. No Waiver. No failure or delay by a Party in exercising any of its rights shall operate as a waiver thereof, and no single or partial exercise of any right will preclude any other or further exercise thereof.
13. Severability. In the event that any provision or portion of this Agreement is determined to be invalid or unenforceable for any reason, in whole or in part, the remaining provisions of this Agreement shall be unaffected thereby and shall remain in full force and effect to the fullest extent permitted by applicable law.
14. Restrictions on. Export. A Receiving Party will not export, directly or indirectly, any technical data acquired from the Disclosing Party or any product utilizing any such data to any country for which the U.S. government or any agency thereof at the time of export requires an export license or other governmental approval, without-first obtaining (in each instance) such license or approval and only after receiving express authorization from the Disclosing Party.
15. Governing Law: Venue. The validity, construction and performance of this Agreement shall be governed by, and construed and enforced in accordance with, the applicable laws of the State of Delaware without regard to that state’s principles regarding conflict of laws or choice of laws. Each Party hereby consents, further, to the appropriate state or federal district court in Wilmington, Delaware as the proper venue and jurisdiction for the determination of any rights and the resolution of any disputes arising under or as a result of this Agreement. Nothing in this Agreement prohibits a Party from seeking specific performance, injunctive, other equitable relief, and/or damages as a remedy for a breach or threatened breach of this Agreement. The prevailing Party in any arbitration, litigation or other legal proceeding arising out of, or relating to, this Agreement shall be entitled to recover from the other Party (in addition to other relief awarded or granted) its reasonable costs and expenses, including related attorneys fees in the amount determined by the appropriate arbitrator, trial court or appellate court.
16. Entire Agreement: General Terms. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and merges and supersedes all prior and contemporaneous negotiations, discussion, memoranda and agreements pertaining thereto. Nothing in this Agreement is intended to create or shall be construed as creating an employer-employee relationship or any partnership, agency, joint venture or similar relationship with any person. This Agreement shall not be amended, modified or canceled except in a written instrument executed by both Parties. Both Parties actively participated in the preparation and negotiation of this Agreement, and accordingly, this Agreement shall be interpreted and governed without regard as to which Party principally drafted this Agreement. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original instrument.
IN WITNESS WHEREOF, the Parties have entered into this Agreement effective as of the Effective Date defined above:
Online Resources Corporation ACI Worldwide, Inc.
By: /s/ Joseph L. Cowan By: /s/ Dennis P. Byrnes
Joseph L. Cowan Name:Dennis P. Byrnes
President and CEO Title: Executive Vice President
Notice Address: Notice Address:
4795 Meadow Wood Lane 6060 Coventry Drive
Chantilly, VA 20151 Elkhorn, NE 68022
Email: [email protected] Email: [email protected]
Fax: 703.653.2605 Fax: 402.778.2567
JOINDER AGREEMENT
By executing this Joinder Agreement, PricewaterhouseCoopers (the “Joining Party”), hereby irrevocably agrees, effective as of the date hereof, to become a party to the Non-Disclosure and Confidentiality Agreement (the “Confidentiality Agreement”), dated November 15, 2012, between Online Resources Corporation and ACI Worldwide, Inc. (“ACIW”). as if it were the “Receiving Party” (as therein defined). Without limiting the foregoing, the Joining Party hereby acknowledges and agrees that (1) it has been furnished a copy of the Confidentiality Agreement and (2) the Joining Party will observe all obligations of a “Receiving Party” there under. Upon execution and delivery of this Joinder Agreement, the obligations of ACIW and PricewaterhouseCoopers will be several and neither of them will have any liability for breaches thereof by the other or the other’s agents.
Dated: January 4, 2013 PricewaterhouseCoopers
By: /s/ Sanjay Subramanian
Name: Sanjay Subramanian
Title: Principal
Accepted by:
ONLINE RESOURCES CORPORATION
By: /s/ Thomas Ball
Name: Thomas Ball
Title: VP & General Counsel
ACI WORLDWIDE, INC.
By: /s/ Dennis Byrnes
Name: Dennis Byrnes
Title: EVP
| Entailment |
536_nda-15 | 536_nda-15_0 | Q: Agreement shall not grant Receiving Party any right to Confidential Information.
Text: Exhibit (e)(6)
NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT
This Non-Disclosure and Confidentiality Agreement (this “Agreement”), effective as of November 15, 2012 (“Effective Date”), is made and entered into by and between Online Resources Corporation, a Delaware corporation (“ORCC”), and ACI Worldwide, Inc., a Delaware corporation (“Receiving Party”).
WHEREAS, ORCC and Receiving Party (the “Parties”) wish to explore the possibility of engaging in a potential transaction (a “Transaction”);
WHEREAS, in connection with a possible Transaction, Receiving Party desires to gain access to certain Confidential Information (as such terra is defined below) of ORCC; and
WHEREAS, ORCC is willing to disclose such Confidential Information to Receiving Party upon the terms and subject to the conditions set forth in this Agreement.
NOW THEREFORE, in consideration of the foregoing premises the Parties, intending to be legally bound, agree as follows:
1. Confidential Information: Scope.
(a) As used in this Agreement, “Confidential Information” means and includes any and all confidential and/or proprietary information and data, whether in written, tangible, intangible, digital, electronic or oral form, that is disclosed or made available by or on behalf of ORCC to Receiving Party or its Representatives, including without limitation all record-bearing media containing or disclosing such information, relating to the business or operations of ORCC, or is derived therefrom, and includes (without limitation), any and all: (i) non-public, confidential and/or proprietary information of any third party in the possession of ORCC; (ii) ORCC trade secrets, techniques, discoveries, ideas, inventions, concepts, software in various states of development, designs, drawings, images, specifications, data, diagrams, research, economic and financial analyses, strategic plans and analyses, marketing and advertising techniques, client (or customer) and vendor names, client data, new product launches, price data, sales data, personnel files and materials, and all record-bearing media containing or disclosing such information; (iii) all identifiable and/or sensitive “personal information” (as such term is defined in the federal Gramm-Leach-Bliley Act of 1999, as amended) of end users of ORCC’s services, without specific designation as such (including, but not limited to, names, addresses, social security numbers, account numbers and account balances), and all record-bearing media containing or disclosing such information; and (iv) financial information, including (if provided) financial forecasts, projections or plans. All such information shall be treated as ORCC’s Confidential Information under this Agreement regardless of whether or not it is marked or identified as “Confidential Information.” Except as provided in Section 4, neither Party shall announce, disclose or publicize in any manner this Agreement, the terms, or any discussions or negotiations covered by or relating to this Agreement (including with respect to any Transaction) without the prior written consent of the other Party.
(b) As used in this Agreement, “Confidential Information” specifically excludes any information that: (i) has been or becomes publicly available or is now, or in the future, in the public domain in each case without any breach of this Agreement; (ii) prior to disclosure to Receiving Party hereunder, is within the possession of Receiving Party without any obligation of confidentiality; (iii) subsequent to disclosure hereunder, is lawfully received from a third party having rights therein without restriction of such third party’s or Receiving Party’s right to disseminate such information, and without notice of any restriction against its further disclosure; or (iv) is independently developed by Receiving Party by way of persons or entities which have not used, referenced or had access to (directly or indirectly) Confidential Information.
(c) ALL CONFIDENTIAL INFORMATION PROVIDED BY ORCC UNDER THIS AGREEMENT IS PROVIDED “AS IS”. ORCC MAKES ABSOLUTELY NO REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS, IMPLIED OR OTHERWISE, REGARDING THE ACCURACY, COMPLETENESS OR UTILITY OF ANY CONFIDENTIAL INFORMATION.
2. Use. Restriction of Confidential Information. ORCC will disclose certain Confidential Information to Receiving Party solely for the mutually acknowledged purpose recited above, and Receiving Party shall use such Confidential Information only for such purpose. Except to the extent expressly permitted under this Agreement, Receiving Party shall not disclose, disseminate or cause or permit any disclosure or unauthorized use of any Confidential Information, nor shall Receiving Party make any copies, reproductions, summaries or excerpts of any Confidential Information. Receiving Party shall not use any Confidential Information, including, without limitation, any Technical Information, as a basis for developing, marketing or providing products or services that compete (whether directly or indirectly) with the products or services that ORCC sells, markets or provides to its customers. Receiving Party shall at all times protect Confidential Information, using at minimum those measures that it takes to protect its own Confidential Information of a similar nature (provided that such measures are consistent with at least a reasonable degree of care); provided, however, that nothing herein shall relieve Receiving Party of its liability for unauthorized disclosure or use of Confidential Information. In the event Receiving Party loses or causes an unauthorized disclosure of Confidential Information, it will notify ORCC promptly after becoming aware of such disclosure, and will use commercially reasonable efforts to secure the retrieval and return of such Confidential Information. Any delay or failure by ORCC to enforce its rights in the event of any breach of this Agreement shall not be construed to constitute a waiver or release of its rights with respect to such breach or any subsequent breach.
3. Permitted Disclosure. Receiving Party may only disclose Confidential Information provided to it by ORCC hereunder to Receiving Party’s officers, directors, subsidiaries, affiliates, employees, legal counsel, financial advisors and other duly authorized agents and consultants (its “Representatives”) each of whom Receiving Party reasonably determines need to know such Confidential Information for the purpose of assisting the Receiving Party in its evaluation of a Transaction as set forth in this Agreement; provided, however, that Receiving Party shall, prior to disclosing Confidential Information to one or more Representatives in each instance, inform such Representatives of the confidential nature of the Confidential Information and instruct them to maintain the confidentiality of such Confidential Information in a manner consistent with the terms and conditions of this Agreement.
4. Required Disclosure. Except as provided elsewhere in this Section 4, if a Party determines in good faith that it is required under applicable law or legal process to disclose any Confidential Information of a type referred to in clauses (i), (ii), (iii) or (iv) of Section 1(a) (such Confidential Information “Technical Information”), such Party shall give the other Party prompt notice of such fact so that the other Party may obtain a protective order or any other appropriate remedy concerning any such disclosure and/or waive compliance with the nondisclosure requirements of this Agreement. The disclosing Party will reasonably cooperate with the other Party in connection with the other Party’s efforts to obtain any such order or other remedy. If any such order or other remedy does not fully preclude disclosure, or if the other Party waives such compliance, the disclosing Party may make such disclosure, to the extent that the disclosing Party determines in good faith that such disclosure is required under applicable law or legal process, and the disclosing Party will use its best efforts to have confidential treatment accorded to the disclosed Confidential Information. Notwithstanding the foregoing, the Receiving Party may publicly disclose (i) Confidential Information of the type set forth in clause (iv) of Section 1 (a) above and (ii) the fact that the Parties are or have been discussing a proposed Transaction and/or the terms of such proposed Transaction, in each case, only if and to the extent that the Receiving Party determines in good faith based on an opinion of legal counsel that it is required to do so under applicable law or subpoena or other legal process in connection with a Transaction, provided that the Receiving Party furnishes a copy of the proposed disclosure ORCC not less than five business days prior to such disclosure (unless the disclosing Party determines in good faith that it is not reasonably practicable to give such advance notice) and considers in good faith ORCC’s comments on such proposed disclosure. For the avoidance of doubt, this Agreement is not intended to restrict Receiving Party from making any public or private proposal or offer to acquire ORCC or its securities for all cash consideration, or from making such public disclosure in connection therewith as Receiving Party may determine in good faith based on an opinion of legal counsel to be required in accordance with the preceding sentence. Notwithstanding the foregoing, ORCC may publicly disclose the fact that the Parties are or have been discussing a proposed Transaction and/or the terms of such proposed Transaction only if and to the extent that it determines in good faith that it is required to do so under applicable law or legal process in connection with a Transaction, provided that ORCC gives the Receiving Party notice thereof three business days prior to such disclosure unless ORCC determines in good faith that it is not reasonably practicable to give such advance notice.
5. Term of Obligations: Return of Confidential Information. This Agreement shall control and govern all Confidential Information disclosed by ORCC to Receiving Party from and after the Effective Date (as defined above) for a period of one (1) year (the “Term”) unless earlier terminated by the Parties in a separate agreement or instrument executed by both Parties. Promptly upon the expiration or termination of this Agreement, or with respect to Technical Information only, upon. ORCC’s reasonable written request, Receiving Party shall return or destroy all written material (if any) containing or reflecting any Confidential Information. Receiving Party shall direct its Representatives to promptly undertake the same measures described in the preceding sentence. In the event Receiving Party elects to destroy Confidential Information, Receiving Party shall provide ORCC with written certification of such destruction executed by Receiving Party’s officer who supervised such destruction. Notwithstanding the foregoing, Receiving Party may retain only such copies of Confidential Information, subject to the terms and conditions hereunder, as may be necessary or required in accordance with Receiving Party’s internal records retention policies and procedures for applicable legal, compliance and regulatory purposes, provided that counsel to Receiving Party may retain copies of Confidential Information of a type set forth in clause (iv) of Section 1(a) hereof as it determines in good faith to be necessary to advise
Receiving Party in connection with any disclosure permitted by Section 4 hereof provided that all such Confidential Information shall remain subject to the provisions of this Agreement for so long as such information is retained notwithstanding any time limitations set forth in this Agreement, Receiving Party’s obligations to protect Confidential Information received during the Term shall survive and continue for 1 year from and after the Effective Date; provided, however, that (i) Receiving Party’s obligations with respect to Confidential Information that constitutes a trade secret under applicable law shall survive and continue for the longer of 1 year or as long as the same remains a trade secret under applicable law and (ii) this Section 5 will not apply to any information that Receiving Party or its Representatives has previously disclosed as permitted by this Agreement.
6. Ownership of Confidential Information. ORCC owns and shall retain all right, title and interest in and to all Confidential Information, regardless of disclosure hereunder. Absolutely no present or future patent, copyright, trademark, trade secret right or other intellectual property right, nor any right, license, title or interest of any kind, is given, granted, transferred or otherwise conveyed by or under this Agreement with respect to any Confidential Information. Receiving Party shall not reverse-engineer, decompile or disassemble any software disclosed under this Agreement and shall not remove, overprint or change any notice, including as to ownership or confidentiality from any originals or copies of Confidential Information.
7. Equitable Relief. Each Party acknowledges and agrees that a breach of any of its obligations hereunder could cause serious and irreparable harm to the other Party that could not adequately be compensated by monetary damages. Accordingly each Party agrees that, in addition to any of remedies to which the other Party may be entitled at law or in equity, each Party shall be entitled to seek an injunction or injunctions to compel specific performance.
8. Definitive Agreement. Nothing contained in this Agreement binds, commits or imposes any obligation upon either Party to pursue or consummate a Transaction, or to enter into any negotiation or agreement regarding a Transaction or any other business relationship. Unless and until the Parties execute and enter into a separate written, agreement that by its terms is expressly intended to be definitive and mutually binding, neither Party shall be under any obligation of any kind with respect to a Transaction, whether by virtue of this Agreement or any written or oral expression with respect to a Transaction by any person.
9. Further Restrictions.
Each Party hereby acknowledges that the stock of ORCC is publicly traded on the NASDAQ Exchange and that federal securities laws prohibit persons in possession of material non-public information and may, depending on the circumstances, prohibit purchasing or selling the stock of ORCC unless such information is publicly disclosed.
10. Non-Solicitation. For one (1) year from the Effective Date, Receiving Party (including its subsidiaries and affiliates) shall not directly or indirectly solicit, hire or engage ORCC’s employees with whom Receiving Party comes into contact, or of whom it becomes aware, in connection with this Agreement or a Transaction and whose annual base salary from ORCC exceeds $150,000, except with ORCC’s prior written consent; provided, however, that the foregoing restriction shall not apply to the hiring of ORCC’s employees who may respond to internet or other advertisements of general circulation and not specifically targeted at such employees or any action in which no Representative of Receiving Party is involved or aware of the existence of this Agreement or discussions of a possible Transaction.
11. Notice. Any notice which may or is required to be given pursuant to this Agreement shall be in writing and shall be sufficiently given or made if (a) emailed or sent by fax, (b) sent via nationally recognized overnight courier, or (c) served personally upon the Party for whom it is intended, and in each event shall be addressed to the President, Chief Executive Officer or General Counsel of the other Party at its notice address provided under its signature below. The date of receipt of any notice under this Agreement shall be as follows: (i) if served personally, on the date of delivery thereof; (ii) if sent by overnight courier, on the next business day after transmission; and (iii) if emailed or sent by fax, on the next business day after dispatch.
12. No Waiver. No failure or delay by a Party in exercising any of its rights shall operate as a waiver thereof, and no single or partial exercise of any right will preclude any other or further exercise thereof.
13. Severability. In the event that any provision or portion of this Agreement is determined to be invalid or unenforceable for any reason, in whole or in part, the remaining provisions of this Agreement shall be unaffected thereby and shall remain in full force and effect to the fullest extent permitted by applicable law.
14. Restrictions on. Export. A Receiving Party will not export, directly or indirectly, any technical data acquired from the Disclosing Party or any product utilizing any such data to any country for which the U.S. government or any agency thereof at the time of export requires an export license or other governmental approval, without-first obtaining (in each instance) such license or approval and only after receiving express authorization from the Disclosing Party.
15. Governing Law: Venue. The validity, construction and performance of this Agreement shall be governed by, and construed and enforced in accordance with, the applicable laws of the State of Delaware without regard to that state’s principles regarding conflict of laws or choice of laws. Each Party hereby consents, further, to the appropriate state or federal district court in Wilmington, Delaware as the proper venue and jurisdiction for the determination of any rights and the resolution of any disputes arising under or as a result of this Agreement. Nothing in this Agreement prohibits a Party from seeking specific performance, injunctive, other equitable relief, and/or damages as a remedy for a breach or threatened breach of this Agreement. The prevailing Party in any arbitration, litigation or other legal proceeding arising out of, or relating to, this Agreement shall be entitled to recover from the other Party (in addition to other relief awarded or granted) its reasonable costs and expenses, including related attorneys fees in the amount determined by the appropriate arbitrator, trial court or appellate court.
16. Entire Agreement: General Terms. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and merges and supersedes all prior and contemporaneous negotiations, discussion, memoranda and agreements pertaining thereto. Nothing in this Agreement is intended to create or shall be construed as creating an employer-employee relationship or any partnership, agency, joint venture or similar relationship with any person. This Agreement shall not be amended, modified or canceled except in a written instrument executed by both Parties. Both Parties actively participated in the preparation and negotiation of this Agreement, and accordingly, this Agreement shall be interpreted and governed without regard as to which Party principally drafted this Agreement. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original instrument.
IN WITNESS WHEREOF, the Parties have entered into this Agreement effective as of the Effective Date defined above:
Online Resources Corporation ACI Worldwide, Inc.
By: /s/ Joseph L. Cowan By: /s/ Dennis P. Byrnes
Joseph L. Cowan Name:Dennis P. Byrnes
President and CEO Title: Executive Vice President
Notice Address: Notice Address:
4795 Meadow Wood Lane 6060 Coventry Drive
Chantilly, VA 20151 Elkhorn, NE 68022
Email: [email protected] Email: [email protected]
Fax: 703.653.2605 Fax: 402.778.2567
JOINDER AGREEMENT
By executing this Joinder Agreement, PricewaterhouseCoopers (the “Joining Party”), hereby irrevocably agrees, effective as of the date hereof, to become a party to the Non-Disclosure and Confidentiality Agreement (the “Confidentiality Agreement”), dated November 15, 2012, between Online Resources Corporation and ACI Worldwide, Inc. (“ACIW”). as if it were the “Receiving Party” (as therein defined). Without limiting the foregoing, the Joining Party hereby acknowledges and agrees that (1) it has been furnished a copy of the Confidentiality Agreement and (2) the Joining Party will observe all obligations of a “Receiving Party” there under. Upon execution and delivery of this Joinder Agreement, the obligations of ACIW and PricewaterhouseCoopers will be several and neither of them will have any liability for breaches thereof by the other or the other’s agents.
Dated: January 4, 2013 PricewaterhouseCoopers
By: /s/ Sanjay Subramanian
Name: Sanjay Subramanian
Title: Principal
Accepted by:
ONLINE RESOURCES CORPORATION
By: /s/ Thomas Ball
Name: Thomas Ball
Title: VP & General Counsel
ACI WORLDWIDE, INC.
By: /s/ Dennis Byrnes
Name: Dennis Byrnes
Title: EVP
| Entailment |
536_nda-10 | 536_nda-10_0 | Q: Receiving Party shall not disclose the fact that Agreement was agreed or negotiated.
Text: Exhibit (e)(6)
NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT
This Non-Disclosure and Confidentiality Agreement (this “Agreement”), effective as of November 15, 2012 (“Effective Date”), is made and entered into by and between Online Resources Corporation, a Delaware corporation (“ORCC”), and ACI Worldwide, Inc., a Delaware corporation (“Receiving Party”).
WHEREAS, ORCC and Receiving Party (the “Parties”) wish to explore the possibility of engaging in a potential transaction (a “Transaction”);
WHEREAS, in connection with a possible Transaction, Receiving Party desires to gain access to certain Confidential Information (as such terra is defined below) of ORCC; and
WHEREAS, ORCC is willing to disclose such Confidential Information to Receiving Party upon the terms and subject to the conditions set forth in this Agreement.
NOW THEREFORE, in consideration of the foregoing premises the Parties, intending to be legally bound, agree as follows:
1. Confidential Information: Scope.
(a) As used in this Agreement, “Confidential Information” means and includes any and all confidential and/or proprietary information and data, whether in written, tangible, intangible, digital, electronic or oral form, that is disclosed or made available by or on behalf of ORCC to Receiving Party or its Representatives, including without limitation all record-bearing media containing or disclosing such information, relating to the business or operations of ORCC, or is derived therefrom, and includes (without limitation), any and all: (i) non-public, confidential and/or proprietary information of any third party in the possession of ORCC; (ii) ORCC trade secrets, techniques, discoveries, ideas, inventions, concepts, software in various states of development, designs, drawings, images, specifications, data, diagrams, research, economic and financial analyses, strategic plans and analyses, marketing and advertising techniques, client (or customer) and vendor names, client data, new product launches, price data, sales data, personnel files and materials, and all record-bearing media containing or disclosing such information; (iii) all identifiable and/or sensitive “personal information” (as such term is defined in the federal Gramm-Leach-Bliley Act of 1999, as amended) of end users of ORCC’s services, without specific designation as such (including, but not limited to, names, addresses, social security numbers, account numbers and account balances), and all record-bearing media containing or disclosing such information; and (iv) financial information, including (if provided) financial forecasts, projections or plans. All such information shall be treated as ORCC’s Confidential Information under this Agreement regardless of whether or not it is marked or identified as “Confidential Information.” Except as provided in Section 4, neither Party shall announce, disclose or publicize in any manner this Agreement, the terms, or any discussions or negotiations covered by or relating to this Agreement (including with respect to any Transaction) without the prior written consent of the other Party.
(b) As used in this Agreement, “Confidential Information” specifically excludes any information that: (i) has been or becomes publicly available or is now, or in the future, in the public domain in each case without any breach of this Agreement; (ii) prior to disclosure to Receiving Party hereunder, is within the possession of Receiving Party without any obligation of confidentiality; (iii) subsequent to disclosure hereunder, is lawfully received from a third party having rights therein without restriction of such third party’s or Receiving Party’s right to disseminate such information, and without notice of any restriction against its further disclosure; or (iv) is independently developed by Receiving Party by way of persons or entities which have not used, referenced or had access to (directly or indirectly) Confidential Information.
(c) ALL CONFIDENTIAL INFORMATION PROVIDED BY ORCC UNDER THIS AGREEMENT IS PROVIDED “AS IS”. ORCC MAKES ABSOLUTELY NO REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS, IMPLIED OR OTHERWISE, REGARDING THE ACCURACY, COMPLETENESS OR UTILITY OF ANY CONFIDENTIAL INFORMATION.
2. Use. Restriction of Confidential Information. ORCC will disclose certain Confidential Information to Receiving Party solely for the mutually acknowledged purpose recited above, and Receiving Party shall use such Confidential Information only for such purpose. Except to the extent expressly permitted under this Agreement, Receiving Party shall not disclose, disseminate or cause or permit any disclosure or unauthorized use of any Confidential Information, nor shall Receiving Party make any copies, reproductions, summaries or excerpts of any Confidential Information. Receiving Party shall not use any Confidential Information, including, without limitation, any Technical Information, as a basis for developing, marketing or providing products or services that compete (whether directly or indirectly) with the products or services that ORCC sells, markets or provides to its customers. Receiving Party shall at all times protect Confidential Information, using at minimum those measures that it takes to protect its own Confidential Information of a similar nature (provided that such measures are consistent with at least a reasonable degree of care); provided, however, that nothing herein shall relieve Receiving Party of its liability for unauthorized disclosure or use of Confidential Information. In the event Receiving Party loses or causes an unauthorized disclosure of Confidential Information, it will notify ORCC promptly after becoming aware of such disclosure, and will use commercially reasonable efforts to secure the retrieval and return of such Confidential Information. Any delay or failure by ORCC to enforce its rights in the event of any breach of this Agreement shall not be construed to constitute a waiver or release of its rights with respect to such breach or any subsequent breach.
3. Permitted Disclosure. Receiving Party may only disclose Confidential Information provided to it by ORCC hereunder to Receiving Party’s officers, directors, subsidiaries, affiliates, employees, legal counsel, financial advisors and other duly authorized agents and consultants (its “Representatives”) each of whom Receiving Party reasonably determines need to know such Confidential Information for the purpose of assisting the Receiving Party in its evaluation of a Transaction as set forth in this Agreement; provided, however, that Receiving Party shall, prior to disclosing Confidential Information to one or more Representatives in each instance, inform such Representatives of the confidential nature of the Confidential Information and instruct them to maintain the confidentiality of such Confidential Information in a manner consistent with the terms and conditions of this Agreement.
4. Required Disclosure. Except as provided elsewhere in this Section 4, if a Party determines in good faith that it is required under applicable law or legal process to disclose any Confidential Information of a type referred to in clauses (i), (ii), (iii) or (iv) of Section 1(a) (such Confidential Information “Technical Information”), such Party shall give the other Party prompt notice of such fact so that the other Party may obtain a protective order or any other appropriate remedy concerning any such disclosure and/or waive compliance with the nondisclosure requirements of this Agreement. The disclosing Party will reasonably cooperate with the other Party in connection with the other Party’s efforts to obtain any such order or other remedy. If any such order or other remedy does not fully preclude disclosure, or if the other Party waives such compliance, the disclosing Party may make such disclosure, to the extent that the disclosing Party determines in good faith that such disclosure is required under applicable law or legal process, and the disclosing Party will use its best efforts to have confidential treatment accorded to the disclosed Confidential Information. Notwithstanding the foregoing, the Receiving Party may publicly disclose (i) Confidential Information of the type set forth in clause (iv) of Section 1 (a) above and (ii) the fact that the Parties are or have been discussing a proposed Transaction and/or the terms of such proposed Transaction, in each case, only if and to the extent that the Receiving Party determines in good faith based on an opinion of legal counsel that it is required to do so under applicable law or subpoena or other legal process in connection with a Transaction, provided that the Receiving Party furnishes a copy of the proposed disclosure ORCC not less than five business days prior to such disclosure (unless the disclosing Party determines in good faith that it is not reasonably practicable to give such advance notice) and considers in good faith ORCC’s comments on such proposed disclosure. For the avoidance of doubt, this Agreement is not intended to restrict Receiving Party from making any public or private proposal or offer to acquire ORCC or its securities for all cash consideration, or from making such public disclosure in connection therewith as Receiving Party may determine in good faith based on an opinion of legal counsel to be required in accordance with the preceding sentence. Notwithstanding the foregoing, ORCC may publicly disclose the fact that the Parties are or have been discussing a proposed Transaction and/or the terms of such proposed Transaction only if and to the extent that it determines in good faith that it is required to do so under applicable law or legal process in connection with a Transaction, provided that ORCC gives the Receiving Party notice thereof three business days prior to such disclosure unless ORCC determines in good faith that it is not reasonably practicable to give such advance notice.
5. Term of Obligations: Return of Confidential Information. This Agreement shall control and govern all Confidential Information disclosed by ORCC to Receiving Party from and after the Effective Date (as defined above) for a period of one (1) year (the “Term”) unless earlier terminated by the Parties in a separate agreement or instrument executed by both Parties. Promptly upon the expiration or termination of this Agreement, or with respect to Technical Information only, upon. ORCC’s reasonable written request, Receiving Party shall return or destroy all written material (if any) containing or reflecting any Confidential Information. Receiving Party shall direct its Representatives to promptly undertake the same measures described in the preceding sentence. In the event Receiving Party elects to destroy Confidential Information, Receiving Party shall provide ORCC with written certification of such destruction executed by Receiving Party’s officer who supervised such destruction. Notwithstanding the foregoing, Receiving Party may retain only such copies of Confidential Information, subject to the terms and conditions hereunder, as may be necessary or required in accordance with Receiving Party’s internal records retention policies and procedures for applicable legal, compliance and regulatory purposes, provided that counsel to Receiving Party may retain copies of Confidential Information of a type set forth in clause (iv) of Section 1(a) hereof as it determines in good faith to be necessary to advise
Receiving Party in connection with any disclosure permitted by Section 4 hereof provided that all such Confidential Information shall remain subject to the provisions of this Agreement for so long as such information is retained notwithstanding any time limitations set forth in this Agreement, Receiving Party’s obligations to protect Confidential Information received during the Term shall survive and continue for 1 year from and after the Effective Date; provided, however, that (i) Receiving Party’s obligations with respect to Confidential Information that constitutes a trade secret under applicable law shall survive and continue for the longer of 1 year or as long as the same remains a trade secret under applicable law and (ii) this Section 5 will not apply to any information that Receiving Party or its Representatives has previously disclosed as permitted by this Agreement.
6. Ownership of Confidential Information. ORCC owns and shall retain all right, title and interest in and to all Confidential Information, regardless of disclosure hereunder. Absolutely no present or future patent, copyright, trademark, trade secret right or other intellectual property right, nor any right, license, title or interest of any kind, is given, granted, transferred or otherwise conveyed by or under this Agreement with respect to any Confidential Information. Receiving Party shall not reverse-engineer, decompile or disassemble any software disclosed under this Agreement and shall not remove, overprint or change any notice, including as to ownership or confidentiality from any originals or copies of Confidential Information.
7. Equitable Relief. Each Party acknowledges and agrees that a breach of any of its obligations hereunder could cause serious and irreparable harm to the other Party that could not adequately be compensated by monetary damages. Accordingly each Party agrees that, in addition to any of remedies to which the other Party may be entitled at law or in equity, each Party shall be entitled to seek an injunction or injunctions to compel specific performance.
8. Definitive Agreement. Nothing contained in this Agreement binds, commits or imposes any obligation upon either Party to pursue or consummate a Transaction, or to enter into any negotiation or agreement regarding a Transaction or any other business relationship. Unless and until the Parties execute and enter into a separate written, agreement that by its terms is expressly intended to be definitive and mutually binding, neither Party shall be under any obligation of any kind with respect to a Transaction, whether by virtue of this Agreement or any written or oral expression with respect to a Transaction by any person.
9. Further Restrictions.
Each Party hereby acknowledges that the stock of ORCC is publicly traded on the NASDAQ Exchange and that federal securities laws prohibit persons in possession of material non-public information and may, depending on the circumstances, prohibit purchasing or selling the stock of ORCC unless such information is publicly disclosed.
10. Non-Solicitation. For one (1) year from the Effective Date, Receiving Party (including its subsidiaries and affiliates) shall not directly or indirectly solicit, hire or engage ORCC’s employees with whom Receiving Party comes into contact, or of whom it becomes aware, in connection with this Agreement or a Transaction and whose annual base salary from ORCC exceeds $150,000, except with ORCC’s prior written consent; provided, however, that the foregoing restriction shall not apply to the hiring of ORCC’s employees who may respond to internet or other advertisements of general circulation and not specifically targeted at such employees or any action in which no Representative of Receiving Party is involved or aware of the existence of this Agreement or discussions of a possible Transaction.
11. Notice. Any notice which may or is required to be given pursuant to this Agreement shall be in writing and shall be sufficiently given or made if (a) emailed or sent by fax, (b) sent via nationally recognized overnight courier, or (c) served personally upon the Party for whom it is intended, and in each event shall be addressed to the President, Chief Executive Officer or General Counsel of the other Party at its notice address provided under its signature below. The date of receipt of any notice under this Agreement shall be as follows: (i) if served personally, on the date of delivery thereof; (ii) if sent by overnight courier, on the next business day after transmission; and (iii) if emailed or sent by fax, on the next business day after dispatch.
12. No Waiver. No failure or delay by a Party in exercising any of its rights shall operate as a waiver thereof, and no single or partial exercise of any right will preclude any other or further exercise thereof.
13. Severability. In the event that any provision or portion of this Agreement is determined to be invalid or unenforceable for any reason, in whole or in part, the remaining provisions of this Agreement shall be unaffected thereby and shall remain in full force and effect to the fullest extent permitted by applicable law.
14. Restrictions on. Export. A Receiving Party will not export, directly or indirectly, any technical data acquired from the Disclosing Party or any product utilizing any such data to any country for which the U.S. government or any agency thereof at the time of export requires an export license or other governmental approval, without-first obtaining (in each instance) such license or approval and only after receiving express authorization from the Disclosing Party.
15. Governing Law: Venue. The validity, construction and performance of this Agreement shall be governed by, and construed and enforced in accordance with, the applicable laws of the State of Delaware without regard to that state’s principles regarding conflict of laws or choice of laws. Each Party hereby consents, further, to the appropriate state or federal district court in Wilmington, Delaware as the proper venue and jurisdiction for the determination of any rights and the resolution of any disputes arising under or as a result of this Agreement. Nothing in this Agreement prohibits a Party from seeking specific performance, injunctive, other equitable relief, and/or damages as a remedy for a breach or threatened breach of this Agreement. The prevailing Party in any arbitration, litigation or other legal proceeding arising out of, or relating to, this Agreement shall be entitled to recover from the other Party (in addition to other relief awarded or granted) its reasonable costs and expenses, including related attorneys fees in the amount determined by the appropriate arbitrator, trial court or appellate court.
16. Entire Agreement: General Terms. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and merges and supersedes all prior and contemporaneous negotiations, discussion, memoranda and agreements pertaining thereto. Nothing in this Agreement is intended to create or shall be construed as creating an employer-employee relationship or any partnership, agency, joint venture or similar relationship with any person. This Agreement shall not be amended, modified or canceled except in a written instrument executed by both Parties. Both Parties actively participated in the preparation and negotiation of this Agreement, and accordingly, this Agreement shall be interpreted and governed without regard as to which Party principally drafted this Agreement. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original instrument.
IN WITNESS WHEREOF, the Parties have entered into this Agreement effective as of the Effective Date defined above:
Online Resources Corporation ACI Worldwide, Inc.
By: /s/ Joseph L. Cowan By: /s/ Dennis P. Byrnes
Joseph L. Cowan Name:Dennis P. Byrnes
President and CEO Title: Executive Vice President
Notice Address: Notice Address:
4795 Meadow Wood Lane 6060 Coventry Drive
Chantilly, VA 20151 Elkhorn, NE 68022
Email: [email protected] Email: [email protected]
Fax: 703.653.2605 Fax: 402.778.2567
JOINDER AGREEMENT
By executing this Joinder Agreement, PricewaterhouseCoopers (the “Joining Party”), hereby irrevocably agrees, effective as of the date hereof, to become a party to the Non-Disclosure and Confidentiality Agreement (the “Confidentiality Agreement”), dated November 15, 2012, between Online Resources Corporation and ACI Worldwide, Inc. (“ACIW”). as if it were the “Receiving Party” (as therein defined). Without limiting the foregoing, the Joining Party hereby acknowledges and agrees that (1) it has been furnished a copy of the Confidentiality Agreement and (2) the Joining Party will observe all obligations of a “Receiving Party” there under. Upon execution and delivery of this Joinder Agreement, the obligations of ACIW and PricewaterhouseCoopers will be several and neither of them will have any liability for breaches thereof by the other or the other’s agents.
Dated: January 4, 2013 PricewaterhouseCoopers
By: /s/ Sanjay Subramanian
Name: Sanjay Subramanian
Title: Principal
Accepted by:
ONLINE RESOURCES CORPORATION
By: /s/ Thomas Ball
Name: Thomas Ball
Title: VP & General Counsel
ACI WORLDWIDE, INC.
By: /s/ Dennis Byrnes
Name: Dennis Byrnes
Title: EVP
| Entailment |
536_nda-2 | 536_nda-2_0 | Q: Confidential Information shall only include technical information.
Text: Exhibit (e)(6)
NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT
This Non-Disclosure and Confidentiality Agreement (this “Agreement”), effective as of November 15, 2012 (“Effective Date”), is made and entered into by and between Online Resources Corporation, a Delaware corporation (“ORCC”), and ACI Worldwide, Inc., a Delaware corporation (“Receiving Party”).
WHEREAS, ORCC and Receiving Party (the “Parties”) wish to explore the possibility of engaging in a potential transaction (a “Transaction”);
WHEREAS, in connection with a possible Transaction, Receiving Party desires to gain access to certain Confidential Information (as such terra is defined below) of ORCC; and
WHEREAS, ORCC is willing to disclose such Confidential Information to Receiving Party upon the terms and subject to the conditions set forth in this Agreement.
NOW THEREFORE, in consideration of the foregoing premises the Parties, intending to be legally bound, agree as follows:
1. Confidential Information: Scope.
(a) As used in this Agreement, “Confidential Information” means and includes any and all confidential and/or proprietary information and data, whether in written, tangible, intangible, digital, electronic or oral form, that is disclosed or made available by or on behalf of ORCC to Receiving Party or its Representatives, including without limitation all record-bearing media containing or disclosing such information, relating to the business or operations of ORCC, or is derived therefrom, and includes (without limitation), any and all: (i) non-public, confidential and/or proprietary information of any third party in the possession of ORCC; (ii) ORCC trade secrets, techniques, discoveries, ideas, inventions, concepts, software in various states of development, designs, drawings, images, specifications, data, diagrams, research, economic and financial analyses, strategic plans and analyses, marketing and advertising techniques, client (or customer) and vendor names, client data, new product launches, price data, sales data, personnel files and materials, and all record-bearing media containing or disclosing such information; (iii) all identifiable and/or sensitive “personal information” (as such term is defined in the federal Gramm-Leach-Bliley Act of 1999, as amended) of end users of ORCC’s services, without specific designation as such (including, but not limited to, names, addresses, social security numbers, account numbers and account balances), and all record-bearing media containing or disclosing such information; and (iv) financial information, including (if provided) financial forecasts, projections or plans. All such information shall be treated as ORCC’s Confidential Information under this Agreement regardless of whether or not it is marked or identified as “Confidential Information.” Except as provided in Section 4, neither Party shall announce, disclose or publicize in any manner this Agreement, the terms, or any discussions or negotiations covered by or relating to this Agreement (including with respect to any Transaction) without the prior written consent of the other Party.
(b) As used in this Agreement, “Confidential Information” specifically excludes any information that: (i) has been or becomes publicly available or is now, or in the future, in the public domain in each case without any breach of this Agreement; (ii) prior to disclosure to Receiving Party hereunder, is within the possession of Receiving Party without any obligation of confidentiality; (iii) subsequent to disclosure hereunder, is lawfully received from a third party having rights therein without restriction of such third party’s or Receiving Party’s right to disseminate such information, and without notice of any restriction against its further disclosure; or (iv) is independently developed by Receiving Party by way of persons or entities which have not used, referenced or had access to (directly or indirectly) Confidential Information.
(c) ALL CONFIDENTIAL INFORMATION PROVIDED BY ORCC UNDER THIS AGREEMENT IS PROVIDED “AS IS”. ORCC MAKES ABSOLUTELY NO REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS, IMPLIED OR OTHERWISE, REGARDING THE ACCURACY, COMPLETENESS OR UTILITY OF ANY CONFIDENTIAL INFORMATION.
2. Use. Restriction of Confidential Information. ORCC will disclose certain Confidential Information to Receiving Party solely for the mutually acknowledged purpose recited above, and Receiving Party shall use such Confidential Information only for such purpose. Except to the extent expressly permitted under this Agreement, Receiving Party shall not disclose, disseminate or cause or permit any disclosure or unauthorized use of any Confidential Information, nor shall Receiving Party make any copies, reproductions, summaries or excerpts of any Confidential Information. Receiving Party shall not use any Confidential Information, including, without limitation, any Technical Information, as a basis for developing, marketing or providing products or services that compete (whether directly or indirectly) with the products or services that ORCC sells, markets or provides to its customers. Receiving Party shall at all times protect Confidential Information, using at minimum those measures that it takes to protect its own Confidential Information of a similar nature (provided that such measures are consistent with at least a reasonable degree of care); provided, however, that nothing herein shall relieve Receiving Party of its liability for unauthorized disclosure or use of Confidential Information. In the event Receiving Party loses or causes an unauthorized disclosure of Confidential Information, it will notify ORCC promptly after becoming aware of such disclosure, and will use commercially reasonable efforts to secure the retrieval and return of such Confidential Information. Any delay or failure by ORCC to enforce its rights in the event of any breach of this Agreement shall not be construed to constitute a waiver or release of its rights with respect to such breach or any subsequent breach.
3. Permitted Disclosure. Receiving Party may only disclose Confidential Information provided to it by ORCC hereunder to Receiving Party’s officers, directors, subsidiaries, affiliates, employees, legal counsel, financial advisors and other duly authorized agents and consultants (its “Representatives”) each of whom Receiving Party reasonably determines need to know such Confidential Information for the purpose of assisting the Receiving Party in its evaluation of a Transaction as set forth in this Agreement; provided, however, that Receiving Party shall, prior to disclosing Confidential Information to one or more Representatives in each instance, inform such Representatives of the confidential nature of the Confidential Information and instruct them to maintain the confidentiality of such Confidential Information in a manner consistent with the terms and conditions of this Agreement.
4. Required Disclosure. Except as provided elsewhere in this Section 4, if a Party determines in good faith that it is required under applicable law or legal process to disclose any Confidential Information of a type referred to in clauses (i), (ii), (iii) or (iv) of Section 1(a) (such Confidential Information “Technical Information”), such Party shall give the other Party prompt notice of such fact so that the other Party may obtain a protective order or any other appropriate remedy concerning any such disclosure and/or waive compliance with the nondisclosure requirements of this Agreement. The disclosing Party will reasonably cooperate with the other Party in connection with the other Party’s efforts to obtain any such order or other remedy. If any such order or other remedy does not fully preclude disclosure, or if the other Party waives such compliance, the disclosing Party may make such disclosure, to the extent that the disclosing Party determines in good faith that such disclosure is required under applicable law or legal process, and the disclosing Party will use its best efforts to have confidential treatment accorded to the disclosed Confidential Information. Notwithstanding the foregoing, the Receiving Party may publicly disclose (i) Confidential Information of the type set forth in clause (iv) of Section 1 (a) above and (ii) the fact that the Parties are or have been discussing a proposed Transaction and/or the terms of such proposed Transaction, in each case, only if and to the extent that the Receiving Party determines in good faith based on an opinion of legal counsel that it is required to do so under applicable law or subpoena or other legal process in connection with a Transaction, provided that the Receiving Party furnishes a copy of the proposed disclosure ORCC not less than five business days prior to such disclosure (unless the disclosing Party determines in good faith that it is not reasonably practicable to give such advance notice) and considers in good faith ORCC’s comments on such proposed disclosure. For the avoidance of doubt, this Agreement is not intended to restrict Receiving Party from making any public or private proposal or offer to acquire ORCC or its securities for all cash consideration, or from making such public disclosure in connection therewith as Receiving Party may determine in good faith based on an opinion of legal counsel to be required in accordance with the preceding sentence. Notwithstanding the foregoing, ORCC may publicly disclose the fact that the Parties are or have been discussing a proposed Transaction and/or the terms of such proposed Transaction only if and to the extent that it determines in good faith that it is required to do so under applicable law or legal process in connection with a Transaction, provided that ORCC gives the Receiving Party notice thereof three business days prior to such disclosure unless ORCC determines in good faith that it is not reasonably practicable to give such advance notice.
5. Term of Obligations: Return of Confidential Information. This Agreement shall control and govern all Confidential Information disclosed by ORCC to Receiving Party from and after the Effective Date (as defined above) for a period of one (1) year (the “Term”) unless earlier terminated by the Parties in a separate agreement or instrument executed by both Parties. Promptly upon the expiration or termination of this Agreement, or with respect to Technical Information only, upon. ORCC’s reasonable written request, Receiving Party shall return or destroy all written material (if any) containing or reflecting any Confidential Information. Receiving Party shall direct its Representatives to promptly undertake the same measures described in the preceding sentence. In the event Receiving Party elects to destroy Confidential Information, Receiving Party shall provide ORCC with written certification of such destruction executed by Receiving Party’s officer who supervised such destruction. Notwithstanding the foregoing, Receiving Party may retain only such copies of Confidential Information, subject to the terms and conditions hereunder, as may be necessary or required in accordance with Receiving Party’s internal records retention policies and procedures for applicable legal, compliance and regulatory purposes, provided that counsel to Receiving Party may retain copies of Confidential Information of a type set forth in clause (iv) of Section 1(a) hereof as it determines in good faith to be necessary to advise
Receiving Party in connection with any disclosure permitted by Section 4 hereof provided that all such Confidential Information shall remain subject to the provisions of this Agreement for so long as such information is retained notwithstanding any time limitations set forth in this Agreement, Receiving Party’s obligations to protect Confidential Information received during the Term shall survive and continue for 1 year from and after the Effective Date; provided, however, that (i) Receiving Party’s obligations with respect to Confidential Information that constitutes a trade secret under applicable law shall survive and continue for the longer of 1 year or as long as the same remains a trade secret under applicable law and (ii) this Section 5 will not apply to any information that Receiving Party or its Representatives has previously disclosed as permitted by this Agreement.
6. Ownership of Confidential Information. ORCC owns and shall retain all right, title and interest in and to all Confidential Information, regardless of disclosure hereunder. Absolutely no present or future patent, copyright, trademark, trade secret right or other intellectual property right, nor any right, license, title or interest of any kind, is given, granted, transferred or otherwise conveyed by or under this Agreement with respect to any Confidential Information. Receiving Party shall not reverse-engineer, decompile or disassemble any software disclosed under this Agreement and shall not remove, overprint or change any notice, including as to ownership or confidentiality from any originals or copies of Confidential Information.
7. Equitable Relief. Each Party acknowledges and agrees that a breach of any of its obligations hereunder could cause serious and irreparable harm to the other Party that could not adequately be compensated by monetary damages. Accordingly each Party agrees that, in addition to any of remedies to which the other Party may be entitled at law or in equity, each Party shall be entitled to seek an injunction or injunctions to compel specific performance.
8. Definitive Agreement. Nothing contained in this Agreement binds, commits or imposes any obligation upon either Party to pursue or consummate a Transaction, or to enter into any negotiation or agreement regarding a Transaction or any other business relationship. Unless and until the Parties execute and enter into a separate written, agreement that by its terms is expressly intended to be definitive and mutually binding, neither Party shall be under any obligation of any kind with respect to a Transaction, whether by virtue of this Agreement or any written or oral expression with respect to a Transaction by any person.
9. Further Restrictions.
Each Party hereby acknowledges that the stock of ORCC is publicly traded on the NASDAQ Exchange and that federal securities laws prohibit persons in possession of material non-public information and may, depending on the circumstances, prohibit purchasing or selling the stock of ORCC unless such information is publicly disclosed.
10. Non-Solicitation. For one (1) year from the Effective Date, Receiving Party (including its subsidiaries and affiliates) shall not directly or indirectly solicit, hire or engage ORCC’s employees with whom Receiving Party comes into contact, or of whom it becomes aware, in connection with this Agreement or a Transaction and whose annual base salary from ORCC exceeds $150,000, except with ORCC’s prior written consent; provided, however, that the foregoing restriction shall not apply to the hiring of ORCC’s employees who may respond to internet or other advertisements of general circulation and not specifically targeted at such employees or any action in which no Representative of Receiving Party is involved or aware of the existence of this Agreement or discussions of a possible Transaction.
11. Notice. Any notice which may or is required to be given pursuant to this Agreement shall be in writing and shall be sufficiently given or made if (a) emailed or sent by fax, (b) sent via nationally recognized overnight courier, or (c) served personally upon the Party for whom it is intended, and in each event shall be addressed to the President, Chief Executive Officer or General Counsel of the other Party at its notice address provided under its signature below. The date of receipt of any notice under this Agreement shall be as follows: (i) if served personally, on the date of delivery thereof; (ii) if sent by overnight courier, on the next business day after transmission; and (iii) if emailed or sent by fax, on the next business day after dispatch.
12. No Waiver. No failure or delay by a Party in exercising any of its rights shall operate as a waiver thereof, and no single or partial exercise of any right will preclude any other or further exercise thereof.
13. Severability. In the event that any provision or portion of this Agreement is determined to be invalid or unenforceable for any reason, in whole or in part, the remaining provisions of this Agreement shall be unaffected thereby and shall remain in full force and effect to the fullest extent permitted by applicable law.
14. Restrictions on. Export. A Receiving Party will not export, directly or indirectly, any technical data acquired from the Disclosing Party or any product utilizing any such data to any country for which the U.S. government or any agency thereof at the time of export requires an export license or other governmental approval, without-first obtaining (in each instance) such license or approval and only after receiving express authorization from the Disclosing Party.
15. Governing Law: Venue. The validity, construction and performance of this Agreement shall be governed by, and construed and enforced in accordance with, the applicable laws of the State of Delaware without regard to that state’s principles regarding conflict of laws or choice of laws. Each Party hereby consents, further, to the appropriate state or federal district court in Wilmington, Delaware as the proper venue and jurisdiction for the determination of any rights and the resolution of any disputes arising under or as a result of this Agreement. Nothing in this Agreement prohibits a Party from seeking specific performance, injunctive, other equitable relief, and/or damages as a remedy for a breach or threatened breach of this Agreement. The prevailing Party in any arbitration, litigation or other legal proceeding arising out of, or relating to, this Agreement shall be entitled to recover from the other Party (in addition to other relief awarded or granted) its reasonable costs and expenses, including related attorneys fees in the amount determined by the appropriate arbitrator, trial court or appellate court.
16. Entire Agreement: General Terms. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and merges and supersedes all prior and contemporaneous negotiations, discussion, memoranda and agreements pertaining thereto. Nothing in this Agreement is intended to create or shall be construed as creating an employer-employee relationship or any partnership, agency, joint venture or similar relationship with any person. This Agreement shall not be amended, modified or canceled except in a written instrument executed by both Parties. Both Parties actively participated in the preparation and negotiation of this Agreement, and accordingly, this Agreement shall be interpreted and governed without regard as to which Party principally drafted this Agreement. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original instrument.
IN WITNESS WHEREOF, the Parties have entered into this Agreement effective as of the Effective Date defined above:
Online Resources Corporation ACI Worldwide, Inc.
By: /s/ Joseph L. Cowan By: /s/ Dennis P. Byrnes
Joseph L. Cowan Name:Dennis P. Byrnes
President and CEO Title: Executive Vice President
Notice Address: Notice Address:
4795 Meadow Wood Lane 6060 Coventry Drive
Chantilly, VA 20151 Elkhorn, NE 68022
Email: [email protected] Email: [email protected]
Fax: 703.653.2605 Fax: 402.778.2567
JOINDER AGREEMENT
By executing this Joinder Agreement, PricewaterhouseCoopers (the “Joining Party”), hereby irrevocably agrees, effective as of the date hereof, to become a party to the Non-Disclosure and Confidentiality Agreement (the “Confidentiality Agreement”), dated November 15, 2012, between Online Resources Corporation and ACI Worldwide, Inc. (“ACIW”). as if it were the “Receiving Party” (as therein defined). Without limiting the foregoing, the Joining Party hereby acknowledges and agrees that (1) it has been furnished a copy of the Confidentiality Agreement and (2) the Joining Party will observe all obligations of a “Receiving Party” there under. Upon execution and delivery of this Joinder Agreement, the obligations of ACIW and PricewaterhouseCoopers will be several and neither of them will have any liability for breaches thereof by the other or the other’s agents.
Dated: January 4, 2013 PricewaterhouseCoopers
By: /s/ Sanjay Subramanian
Name: Sanjay Subramanian
Title: Principal
Accepted by:
ONLINE RESOURCES CORPORATION
By: /s/ Thomas Ball
Name: Thomas Ball
Title: VP & General Counsel
ACI WORLDWIDE, INC.
By: /s/ Dennis Byrnes
Name: Dennis Byrnes
Title: EVP
| Contradiction |
536_nda-1 | 536_nda-1_0 | Q: All Confidential Information shall be expressly identified by the Disclosing Party.
Text: Exhibit (e)(6)
NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT
This Non-Disclosure and Confidentiality Agreement (this “Agreement”), effective as of November 15, 2012 (“Effective Date”), is made and entered into by and between Online Resources Corporation, a Delaware corporation (“ORCC”), and ACI Worldwide, Inc., a Delaware corporation (“Receiving Party”).
WHEREAS, ORCC and Receiving Party (the “Parties”) wish to explore the possibility of engaging in a potential transaction (a “Transaction”);
WHEREAS, in connection with a possible Transaction, Receiving Party desires to gain access to certain Confidential Information (as such terra is defined below) of ORCC; and
WHEREAS, ORCC is willing to disclose such Confidential Information to Receiving Party upon the terms and subject to the conditions set forth in this Agreement.
NOW THEREFORE, in consideration of the foregoing premises the Parties, intending to be legally bound, agree as follows:
1. Confidential Information: Scope.
(a) As used in this Agreement, “Confidential Information” means and includes any and all confidential and/or proprietary information and data, whether in written, tangible, intangible, digital, electronic or oral form, that is disclosed or made available by or on behalf of ORCC to Receiving Party or its Representatives, including without limitation all record-bearing media containing or disclosing such information, relating to the business or operations of ORCC, or is derived therefrom, and includes (without limitation), any and all: (i) non-public, confidential and/or proprietary information of any third party in the possession of ORCC; (ii) ORCC trade secrets, techniques, discoveries, ideas, inventions, concepts, software in various states of development, designs, drawings, images, specifications, data, diagrams, research, economic and financial analyses, strategic plans and analyses, marketing and advertising techniques, client (or customer) and vendor names, client data, new product launches, price data, sales data, personnel files and materials, and all record-bearing media containing or disclosing such information; (iii) all identifiable and/or sensitive “personal information” (as such term is defined in the federal Gramm-Leach-Bliley Act of 1999, as amended) of end users of ORCC’s services, without specific designation as such (including, but not limited to, names, addresses, social security numbers, account numbers and account balances), and all record-bearing media containing or disclosing such information; and (iv) financial information, including (if provided) financial forecasts, projections or plans. All such information shall be treated as ORCC’s Confidential Information under this Agreement regardless of whether or not it is marked or identified as “Confidential Information.” Except as provided in Section 4, neither Party shall announce, disclose or publicize in any manner this Agreement, the terms, or any discussions or negotiations covered by or relating to this Agreement (including with respect to any Transaction) without the prior written consent of the other Party.
(b) As used in this Agreement, “Confidential Information” specifically excludes any information that: (i) has been or becomes publicly available or is now, or in the future, in the public domain in each case without any breach of this Agreement; (ii) prior to disclosure to Receiving Party hereunder, is within the possession of Receiving Party without any obligation of confidentiality; (iii) subsequent to disclosure hereunder, is lawfully received from a third party having rights therein without restriction of such third party’s or Receiving Party’s right to disseminate such information, and without notice of any restriction against its further disclosure; or (iv) is independently developed by Receiving Party by way of persons or entities which have not used, referenced or had access to (directly or indirectly) Confidential Information.
(c) ALL CONFIDENTIAL INFORMATION PROVIDED BY ORCC UNDER THIS AGREEMENT IS PROVIDED “AS IS”. ORCC MAKES ABSOLUTELY NO REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS, IMPLIED OR OTHERWISE, REGARDING THE ACCURACY, COMPLETENESS OR UTILITY OF ANY CONFIDENTIAL INFORMATION.
2. Use. Restriction of Confidential Information. ORCC will disclose certain Confidential Information to Receiving Party solely for the mutually acknowledged purpose recited above, and Receiving Party shall use such Confidential Information only for such purpose. Except to the extent expressly permitted under this Agreement, Receiving Party shall not disclose, disseminate or cause or permit any disclosure or unauthorized use of any Confidential Information, nor shall Receiving Party make any copies, reproductions, summaries or excerpts of any Confidential Information. Receiving Party shall not use any Confidential Information, including, without limitation, any Technical Information, as a basis for developing, marketing or providing products or services that compete (whether directly or indirectly) with the products or services that ORCC sells, markets or provides to its customers. Receiving Party shall at all times protect Confidential Information, using at minimum those measures that it takes to protect its own Confidential Information of a similar nature (provided that such measures are consistent with at least a reasonable degree of care); provided, however, that nothing herein shall relieve Receiving Party of its liability for unauthorized disclosure or use of Confidential Information. In the event Receiving Party loses or causes an unauthorized disclosure of Confidential Information, it will notify ORCC promptly after becoming aware of such disclosure, and will use commercially reasonable efforts to secure the retrieval and return of such Confidential Information. Any delay or failure by ORCC to enforce its rights in the event of any breach of this Agreement shall not be construed to constitute a waiver or release of its rights with respect to such breach or any subsequent breach.
3. Permitted Disclosure. Receiving Party may only disclose Confidential Information provided to it by ORCC hereunder to Receiving Party’s officers, directors, subsidiaries, affiliates, employees, legal counsel, financial advisors and other duly authorized agents and consultants (its “Representatives”) each of whom Receiving Party reasonably determines need to know such Confidential Information for the purpose of assisting the Receiving Party in its evaluation of a Transaction as set forth in this Agreement; provided, however, that Receiving Party shall, prior to disclosing Confidential Information to one or more Representatives in each instance, inform such Representatives of the confidential nature of the Confidential Information and instruct them to maintain the confidentiality of such Confidential Information in a manner consistent with the terms and conditions of this Agreement.
4. Required Disclosure. Except as provided elsewhere in this Section 4, if a Party determines in good faith that it is required under applicable law or legal process to disclose any Confidential Information of a type referred to in clauses (i), (ii), (iii) or (iv) of Section 1(a) (such Confidential Information “Technical Information”), such Party shall give the other Party prompt notice of such fact so that the other Party may obtain a protective order or any other appropriate remedy concerning any such disclosure and/or waive compliance with the nondisclosure requirements of this Agreement. The disclosing Party will reasonably cooperate with the other Party in connection with the other Party’s efforts to obtain any such order or other remedy. If any such order or other remedy does not fully preclude disclosure, or if the other Party waives such compliance, the disclosing Party may make such disclosure, to the extent that the disclosing Party determines in good faith that such disclosure is required under applicable law or legal process, and the disclosing Party will use its best efforts to have confidential treatment accorded to the disclosed Confidential Information. Notwithstanding the foregoing, the Receiving Party may publicly disclose (i) Confidential Information of the type set forth in clause (iv) of Section 1 (a) above and (ii) the fact that the Parties are or have been discussing a proposed Transaction and/or the terms of such proposed Transaction, in each case, only if and to the extent that the Receiving Party determines in good faith based on an opinion of legal counsel that it is required to do so under applicable law or subpoena or other legal process in connection with a Transaction, provided that the Receiving Party furnishes a copy of the proposed disclosure ORCC not less than five business days prior to such disclosure (unless the disclosing Party determines in good faith that it is not reasonably practicable to give such advance notice) and considers in good faith ORCC’s comments on such proposed disclosure. For the avoidance of doubt, this Agreement is not intended to restrict Receiving Party from making any public or private proposal or offer to acquire ORCC or its securities for all cash consideration, or from making such public disclosure in connection therewith as Receiving Party may determine in good faith based on an opinion of legal counsel to be required in accordance with the preceding sentence. Notwithstanding the foregoing, ORCC may publicly disclose the fact that the Parties are or have been discussing a proposed Transaction and/or the terms of such proposed Transaction only if and to the extent that it determines in good faith that it is required to do so under applicable law or legal process in connection with a Transaction, provided that ORCC gives the Receiving Party notice thereof three business days prior to such disclosure unless ORCC determines in good faith that it is not reasonably practicable to give such advance notice.
5. Term of Obligations: Return of Confidential Information. This Agreement shall control and govern all Confidential Information disclosed by ORCC to Receiving Party from and after the Effective Date (as defined above) for a period of one (1) year (the “Term”) unless earlier terminated by the Parties in a separate agreement or instrument executed by both Parties. Promptly upon the expiration or termination of this Agreement, or with respect to Technical Information only, upon. ORCC’s reasonable written request, Receiving Party shall return or destroy all written material (if any) containing or reflecting any Confidential Information. Receiving Party shall direct its Representatives to promptly undertake the same measures described in the preceding sentence. In the event Receiving Party elects to destroy Confidential Information, Receiving Party shall provide ORCC with written certification of such destruction executed by Receiving Party’s officer who supervised such destruction. Notwithstanding the foregoing, Receiving Party may retain only such copies of Confidential Information, subject to the terms and conditions hereunder, as may be necessary or required in accordance with Receiving Party’s internal records retention policies and procedures for applicable legal, compliance and regulatory purposes, provided that counsel to Receiving Party may retain copies of Confidential Information of a type set forth in clause (iv) of Section 1(a) hereof as it determines in good faith to be necessary to advise
Receiving Party in connection with any disclosure permitted by Section 4 hereof provided that all such Confidential Information shall remain subject to the provisions of this Agreement for so long as such information is retained notwithstanding any time limitations set forth in this Agreement, Receiving Party’s obligations to protect Confidential Information received during the Term shall survive and continue for 1 year from and after the Effective Date; provided, however, that (i) Receiving Party’s obligations with respect to Confidential Information that constitutes a trade secret under applicable law shall survive and continue for the longer of 1 year or as long as the same remains a trade secret under applicable law and (ii) this Section 5 will not apply to any information that Receiving Party or its Representatives has previously disclosed as permitted by this Agreement.
6. Ownership of Confidential Information. ORCC owns and shall retain all right, title and interest in and to all Confidential Information, regardless of disclosure hereunder. Absolutely no present or future patent, copyright, trademark, trade secret right or other intellectual property right, nor any right, license, title or interest of any kind, is given, granted, transferred or otherwise conveyed by or under this Agreement with respect to any Confidential Information. Receiving Party shall not reverse-engineer, decompile or disassemble any software disclosed under this Agreement and shall not remove, overprint or change any notice, including as to ownership or confidentiality from any originals or copies of Confidential Information.
7. Equitable Relief. Each Party acknowledges and agrees that a breach of any of its obligations hereunder could cause serious and irreparable harm to the other Party that could not adequately be compensated by monetary damages. Accordingly each Party agrees that, in addition to any of remedies to which the other Party may be entitled at law or in equity, each Party shall be entitled to seek an injunction or injunctions to compel specific performance.
8. Definitive Agreement. Nothing contained in this Agreement binds, commits or imposes any obligation upon either Party to pursue or consummate a Transaction, or to enter into any negotiation or agreement regarding a Transaction or any other business relationship. Unless and until the Parties execute and enter into a separate written, agreement that by its terms is expressly intended to be definitive and mutually binding, neither Party shall be under any obligation of any kind with respect to a Transaction, whether by virtue of this Agreement or any written or oral expression with respect to a Transaction by any person.
9. Further Restrictions.
Each Party hereby acknowledges that the stock of ORCC is publicly traded on the NASDAQ Exchange and that federal securities laws prohibit persons in possession of material non-public information and may, depending on the circumstances, prohibit purchasing or selling the stock of ORCC unless such information is publicly disclosed.
10. Non-Solicitation. For one (1) year from the Effective Date, Receiving Party (including its subsidiaries and affiliates) shall not directly or indirectly solicit, hire or engage ORCC’s employees with whom Receiving Party comes into contact, or of whom it becomes aware, in connection with this Agreement or a Transaction and whose annual base salary from ORCC exceeds $150,000, except with ORCC’s prior written consent; provided, however, that the foregoing restriction shall not apply to the hiring of ORCC’s employees who may respond to internet or other advertisements of general circulation and not specifically targeted at such employees or any action in which no Representative of Receiving Party is involved or aware of the existence of this Agreement or discussions of a possible Transaction.
11. Notice. Any notice which may or is required to be given pursuant to this Agreement shall be in writing and shall be sufficiently given or made if (a) emailed or sent by fax, (b) sent via nationally recognized overnight courier, or (c) served personally upon the Party for whom it is intended, and in each event shall be addressed to the President, Chief Executive Officer or General Counsel of the other Party at its notice address provided under its signature below. The date of receipt of any notice under this Agreement shall be as follows: (i) if served personally, on the date of delivery thereof; (ii) if sent by overnight courier, on the next business day after transmission; and (iii) if emailed or sent by fax, on the next business day after dispatch.
12. No Waiver. No failure or delay by a Party in exercising any of its rights shall operate as a waiver thereof, and no single or partial exercise of any right will preclude any other or further exercise thereof.
13. Severability. In the event that any provision or portion of this Agreement is determined to be invalid or unenforceable for any reason, in whole or in part, the remaining provisions of this Agreement shall be unaffected thereby and shall remain in full force and effect to the fullest extent permitted by applicable law.
14. Restrictions on. Export. A Receiving Party will not export, directly or indirectly, any technical data acquired from the Disclosing Party or any product utilizing any such data to any country for which the U.S. government or any agency thereof at the time of export requires an export license or other governmental approval, without-first obtaining (in each instance) such license or approval and only after receiving express authorization from the Disclosing Party.
15. Governing Law: Venue. The validity, construction and performance of this Agreement shall be governed by, and construed and enforced in accordance with, the applicable laws of the State of Delaware without regard to that state’s principles regarding conflict of laws or choice of laws. Each Party hereby consents, further, to the appropriate state or federal district court in Wilmington, Delaware as the proper venue and jurisdiction for the determination of any rights and the resolution of any disputes arising under or as a result of this Agreement. Nothing in this Agreement prohibits a Party from seeking specific performance, injunctive, other equitable relief, and/or damages as a remedy for a breach or threatened breach of this Agreement. The prevailing Party in any arbitration, litigation or other legal proceeding arising out of, or relating to, this Agreement shall be entitled to recover from the other Party (in addition to other relief awarded or granted) its reasonable costs and expenses, including related attorneys fees in the amount determined by the appropriate arbitrator, trial court or appellate court.
16. Entire Agreement: General Terms. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and merges and supersedes all prior and contemporaneous negotiations, discussion, memoranda and agreements pertaining thereto. Nothing in this Agreement is intended to create or shall be construed as creating an employer-employee relationship or any partnership, agency, joint venture or similar relationship with any person. This Agreement shall not be amended, modified or canceled except in a written instrument executed by both Parties. Both Parties actively participated in the preparation and negotiation of this Agreement, and accordingly, this Agreement shall be interpreted and governed without regard as to which Party principally drafted this Agreement. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original instrument.
IN WITNESS WHEREOF, the Parties have entered into this Agreement effective as of the Effective Date defined above:
Online Resources Corporation ACI Worldwide, Inc.
By: /s/ Joseph L. Cowan By: /s/ Dennis P. Byrnes
Joseph L. Cowan Name:Dennis P. Byrnes
President and CEO Title: Executive Vice President
Notice Address: Notice Address:
4795 Meadow Wood Lane 6060 Coventry Drive
Chantilly, VA 20151 Elkhorn, NE 68022
Email: [email protected] Email: [email protected]
Fax: 703.653.2605 Fax: 402.778.2567
JOINDER AGREEMENT
By executing this Joinder Agreement, PricewaterhouseCoopers (the “Joining Party”), hereby irrevocably agrees, effective as of the date hereof, to become a party to the Non-Disclosure and Confidentiality Agreement (the “Confidentiality Agreement”), dated November 15, 2012, between Online Resources Corporation and ACI Worldwide, Inc. (“ACIW”). as if it were the “Receiving Party” (as therein defined). Without limiting the foregoing, the Joining Party hereby acknowledges and agrees that (1) it has been furnished a copy of the Confidentiality Agreement and (2) the Joining Party will observe all obligations of a “Receiving Party” there under. Upon execution and delivery of this Joinder Agreement, the obligations of ACIW and PricewaterhouseCoopers will be several and neither of them will have any liability for breaches thereof by the other or the other’s agents.
Dated: January 4, 2013 PricewaterhouseCoopers
By: /s/ Sanjay Subramanian
Name: Sanjay Subramanian
Title: Principal
Accepted by:
ONLINE RESOURCES CORPORATION
By: /s/ Thomas Ball
Name: Thomas Ball
Title: VP & General Counsel
ACI WORLDWIDE, INC.
By: /s/ Dennis Byrnes
Name: Dennis Byrnes
Title: EVP
| Contradiction |
536_nda-19 | 536_nda-19_0 | Q: Some obligations of Agreement may survive termination of Agreement.
Text: Exhibit (e)(6)
NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT
This Non-Disclosure and Confidentiality Agreement (this “Agreement”), effective as of November 15, 2012 (“Effective Date”), is made and entered into by and between Online Resources Corporation, a Delaware corporation (“ORCC”), and ACI Worldwide, Inc., a Delaware corporation (“Receiving Party”).
WHEREAS, ORCC and Receiving Party (the “Parties”) wish to explore the possibility of engaging in a potential transaction (a “Transaction”);
WHEREAS, in connection with a possible Transaction, Receiving Party desires to gain access to certain Confidential Information (as such terra is defined below) of ORCC; and
WHEREAS, ORCC is willing to disclose such Confidential Information to Receiving Party upon the terms and subject to the conditions set forth in this Agreement.
NOW THEREFORE, in consideration of the foregoing premises the Parties, intending to be legally bound, agree as follows:
1. Confidential Information: Scope.
(a) As used in this Agreement, “Confidential Information” means and includes any and all confidential and/or proprietary information and data, whether in written, tangible, intangible, digital, electronic or oral form, that is disclosed or made available by or on behalf of ORCC to Receiving Party or its Representatives, including without limitation all record-bearing media containing or disclosing such information, relating to the business or operations of ORCC, or is derived therefrom, and includes (without limitation), any and all: (i) non-public, confidential and/or proprietary information of any third party in the possession of ORCC; (ii) ORCC trade secrets, techniques, discoveries, ideas, inventions, concepts, software in various states of development, designs, drawings, images, specifications, data, diagrams, research, economic and financial analyses, strategic plans and analyses, marketing and advertising techniques, client (or customer) and vendor names, client data, new product launches, price data, sales data, personnel files and materials, and all record-bearing media containing or disclosing such information; (iii) all identifiable and/or sensitive “personal information” (as such term is defined in the federal Gramm-Leach-Bliley Act of 1999, as amended) of end users of ORCC’s services, without specific designation as such (including, but not limited to, names, addresses, social security numbers, account numbers and account balances), and all record-bearing media containing or disclosing such information; and (iv) financial information, including (if provided) financial forecasts, projections or plans. All such information shall be treated as ORCC’s Confidential Information under this Agreement regardless of whether or not it is marked or identified as “Confidential Information.” Except as provided in Section 4, neither Party shall announce, disclose or publicize in any manner this Agreement, the terms, or any discussions or negotiations covered by or relating to this Agreement (including with respect to any Transaction) without the prior written consent of the other Party.
(b) As used in this Agreement, “Confidential Information” specifically excludes any information that: (i) has been or becomes publicly available or is now, or in the future, in the public domain in each case without any breach of this Agreement; (ii) prior to disclosure to Receiving Party hereunder, is within the possession of Receiving Party without any obligation of confidentiality; (iii) subsequent to disclosure hereunder, is lawfully received from a third party having rights therein without restriction of such third party’s or Receiving Party’s right to disseminate such information, and without notice of any restriction against its further disclosure; or (iv) is independently developed by Receiving Party by way of persons or entities which have not used, referenced or had access to (directly or indirectly) Confidential Information.
(c) ALL CONFIDENTIAL INFORMATION PROVIDED BY ORCC UNDER THIS AGREEMENT IS PROVIDED “AS IS”. ORCC MAKES ABSOLUTELY NO REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS, IMPLIED OR OTHERWISE, REGARDING THE ACCURACY, COMPLETENESS OR UTILITY OF ANY CONFIDENTIAL INFORMATION.
2. Use. Restriction of Confidential Information. ORCC will disclose certain Confidential Information to Receiving Party solely for the mutually acknowledged purpose recited above, and Receiving Party shall use such Confidential Information only for such purpose. Except to the extent expressly permitted under this Agreement, Receiving Party shall not disclose, disseminate or cause or permit any disclosure or unauthorized use of any Confidential Information, nor shall Receiving Party make any copies, reproductions, summaries or excerpts of any Confidential Information. Receiving Party shall not use any Confidential Information, including, without limitation, any Technical Information, as a basis for developing, marketing or providing products or services that compete (whether directly or indirectly) with the products or services that ORCC sells, markets or provides to its customers. Receiving Party shall at all times protect Confidential Information, using at minimum those measures that it takes to protect its own Confidential Information of a similar nature (provided that such measures are consistent with at least a reasonable degree of care); provided, however, that nothing herein shall relieve Receiving Party of its liability for unauthorized disclosure or use of Confidential Information. In the event Receiving Party loses or causes an unauthorized disclosure of Confidential Information, it will notify ORCC promptly after becoming aware of such disclosure, and will use commercially reasonable efforts to secure the retrieval and return of such Confidential Information. Any delay or failure by ORCC to enforce its rights in the event of any breach of this Agreement shall not be construed to constitute a waiver or release of its rights with respect to such breach or any subsequent breach.
3. Permitted Disclosure. Receiving Party may only disclose Confidential Information provided to it by ORCC hereunder to Receiving Party’s officers, directors, subsidiaries, affiliates, employees, legal counsel, financial advisors and other duly authorized agents and consultants (its “Representatives”) each of whom Receiving Party reasonably determines need to know such Confidential Information for the purpose of assisting the Receiving Party in its evaluation of a Transaction as set forth in this Agreement; provided, however, that Receiving Party shall, prior to disclosing Confidential Information to one or more Representatives in each instance, inform such Representatives of the confidential nature of the Confidential Information and instruct them to maintain the confidentiality of such Confidential Information in a manner consistent with the terms and conditions of this Agreement.
4. Required Disclosure. Except as provided elsewhere in this Section 4, if a Party determines in good faith that it is required under applicable law or legal process to disclose any Confidential Information of a type referred to in clauses (i), (ii), (iii) or (iv) of Section 1(a) (such Confidential Information “Technical Information”), such Party shall give the other Party prompt notice of such fact so that the other Party may obtain a protective order or any other appropriate remedy concerning any such disclosure and/or waive compliance with the nondisclosure requirements of this Agreement. The disclosing Party will reasonably cooperate with the other Party in connection with the other Party’s efforts to obtain any such order or other remedy. If any such order or other remedy does not fully preclude disclosure, or if the other Party waives such compliance, the disclosing Party may make such disclosure, to the extent that the disclosing Party determines in good faith that such disclosure is required under applicable law or legal process, and the disclosing Party will use its best efforts to have confidential treatment accorded to the disclosed Confidential Information. Notwithstanding the foregoing, the Receiving Party may publicly disclose (i) Confidential Information of the type set forth in clause (iv) of Section 1 (a) above and (ii) the fact that the Parties are or have been discussing a proposed Transaction and/or the terms of such proposed Transaction, in each case, only if and to the extent that the Receiving Party determines in good faith based on an opinion of legal counsel that it is required to do so under applicable law or subpoena or other legal process in connection with a Transaction, provided that the Receiving Party furnishes a copy of the proposed disclosure ORCC not less than five business days prior to such disclosure (unless the disclosing Party determines in good faith that it is not reasonably practicable to give such advance notice) and considers in good faith ORCC’s comments on such proposed disclosure. For the avoidance of doubt, this Agreement is not intended to restrict Receiving Party from making any public or private proposal or offer to acquire ORCC or its securities for all cash consideration, or from making such public disclosure in connection therewith as Receiving Party may determine in good faith based on an opinion of legal counsel to be required in accordance with the preceding sentence. Notwithstanding the foregoing, ORCC may publicly disclose the fact that the Parties are or have been discussing a proposed Transaction and/or the terms of such proposed Transaction only if and to the extent that it determines in good faith that it is required to do so under applicable law or legal process in connection with a Transaction, provided that ORCC gives the Receiving Party notice thereof three business days prior to such disclosure unless ORCC determines in good faith that it is not reasonably practicable to give such advance notice.
5. Term of Obligations: Return of Confidential Information. This Agreement shall control and govern all Confidential Information disclosed by ORCC to Receiving Party from and after the Effective Date (as defined above) for a period of one (1) year (the “Term”) unless earlier terminated by the Parties in a separate agreement or instrument executed by both Parties. Promptly upon the expiration or termination of this Agreement, or with respect to Technical Information only, upon. ORCC’s reasonable written request, Receiving Party shall return or destroy all written material (if any) containing or reflecting any Confidential Information. Receiving Party shall direct its Representatives to promptly undertake the same measures described in the preceding sentence. In the event Receiving Party elects to destroy Confidential Information, Receiving Party shall provide ORCC with written certification of such destruction executed by Receiving Party’s officer who supervised such destruction. Notwithstanding the foregoing, Receiving Party may retain only such copies of Confidential Information, subject to the terms and conditions hereunder, as may be necessary or required in accordance with Receiving Party’s internal records retention policies and procedures for applicable legal, compliance and regulatory purposes, provided that counsel to Receiving Party may retain copies of Confidential Information of a type set forth in clause (iv) of Section 1(a) hereof as it determines in good faith to be necessary to advise
Receiving Party in connection with any disclosure permitted by Section 4 hereof provided that all such Confidential Information shall remain subject to the provisions of this Agreement for so long as such information is retained notwithstanding any time limitations set forth in this Agreement, Receiving Party’s obligations to protect Confidential Information received during the Term shall survive and continue for 1 year from and after the Effective Date; provided, however, that (i) Receiving Party’s obligations with respect to Confidential Information that constitutes a trade secret under applicable law shall survive and continue for the longer of 1 year or as long as the same remains a trade secret under applicable law and (ii) this Section 5 will not apply to any information that Receiving Party or its Representatives has previously disclosed as permitted by this Agreement.
6. Ownership of Confidential Information. ORCC owns and shall retain all right, title and interest in and to all Confidential Information, regardless of disclosure hereunder. Absolutely no present or future patent, copyright, trademark, trade secret right or other intellectual property right, nor any right, license, title or interest of any kind, is given, granted, transferred or otherwise conveyed by or under this Agreement with respect to any Confidential Information. Receiving Party shall not reverse-engineer, decompile or disassemble any software disclosed under this Agreement and shall not remove, overprint or change any notice, including as to ownership or confidentiality from any originals or copies of Confidential Information.
7. Equitable Relief. Each Party acknowledges and agrees that a breach of any of its obligations hereunder could cause serious and irreparable harm to the other Party that could not adequately be compensated by monetary damages. Accordingly each Party agrees that, in addition to any of remedies to which the other Party may be entitled at law or in equity, each Party shall be entitled to seek an injunction or injunctions to compel specific performance.
8. Definitive Agreement. Nothing contained in this Agreement binds, commits or imposes any obligation upon either Party to pursue or consummate a Transaction, or to enter into any negotiation or agreement regarding a Transaction or any other business relationship. Unless and until the Parties execute and enter into a separate written, agreement that by its terms is expressly intended to be definitive and mutually binding, neither Party shall be under any obligation of any kind with respect to a Transaction, whether by virtue of this Agreement or any written or oral expression with respect to a Transaction by any person.
9. Further Restrictions.
Each Party hereby acknowledges that the stock of ORCC is publicly traded on the NASDAQ Exchange and that federal securities laws prohibit persons in possession of material non-public information and may, depending on the circumstances, prohibit purchasing or selling the stock of ORCC unless such information is publicly disclosed.
10. Non-Solicitation. For one (1) year from the Effective Date, Receiving Party (including its subsidiaries and affiliates) shall not directly or indirectly solicit, hire or engage ORCC’s employees with whom Receiving Party comes into contact, or of whom it becomes aware, in connection with this Agreement or a Transaction and whose annual base salary from ORCC exceeds $150,000, except with ORCC’s prior written consent; provided, however, that the foregoing restriction shall not apply to the hiring of ORCC’s employees who may respond to internet or other advertisements of general circulation and not specifically targeted at such employees or any action in which no Representative of Receiving Party is involved or aware of the existence of this Agreement or discussions of a possible Transaction.
11. Notice. Any notice which may or is required to be given pursuant to this Agreement shall be in writing and shall be sufficiently given or made if (a) emailed or sent by fax, (b) sent via nationally recognized overnight courier, or (c) served personally upon the Party for whom it is intended, and in each event shall be addressed to the President, Chief Executive Officer or General Counsel of the other Party at its notice address provided under its signature below. The date of receipt of any notice under this Agreement shall be as follows: (i) if served personally, on the date of delivery thereof; (ii) if sent by overnight courier, on the next business day after transmission; and (iii) if emailed or sent by fax, on the next business day after dispatch.
12. No Waiver. No failure or delay by a Party in exercising any of its rights shall operate as a waiver thereof, and no single or partial exercise of any right will preclude any other or further exercise thereof.
13. Severability. In the event that any provision or portion of this Agreement is determined to be invalid or unenforceable for any reason, in whole or in part, the remaining provisions of this Agreement shall be unaffected thereby and shall remain in full force and effect to the fullest extent permitted by applicable law.
14. Restrictions on. Export. A Receiving Party will not export, directly or indirectly, any technical data acquired from the Disclosing Party or any product utilizing any such data to any country for which the U.S. government or any agency thereof at the time of export requires an export license or other governmental approval, without-first obtaining (in each instance) such license or approval and only after receiving express authorization from the Disclosing Party.
15. Governing Law: Venue. The validity, construction and performance of this Agreement shall be governed by, and construed and enforced in accordance with, the applicable laws of the State of Delaware without regard to that state’s principles regarding conflict of laws or choice of laws. Each Party hereby consents, further, to the appropriate state or federal district court in Wilmington, Delaware as the proper venue and jurisdiction for the determination of any rights and the resolution of any disputes arising under or as a result of this Agreement. Nothing in this Agreement prohibits a Party from seeking specific performance, injunctive, other equitable relief, and/or damages as a remedy for a breach or threatened breach of this Agreement. The prevailing Party in any arbitration, litigation or other legal proceeding arising out of, or relating to, this Agreement shall be entitled to recover from the other Party (in addition to other relief awarded or granted) its reasonable costs and expenses, including related attorneys fees in the amount determined by the appropriate arbitrator, trial court or appellate court.
16. Entire Agreement: General Terms. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and merges and supersedes all prior and contemporaneous negotiations, discussion, memoranda and agreements pertaining thereto. Nothing in this Agreement is intended to create or shall be construed as creating an employer-employee relationship or any partnership, agency, joint venture or similar relationship with any person. This Agreement shall not be amended, modified or canceled except in a written instrument executed by both Parties. Both Parties actively participated in the preparation and negotiation of this Agreement, and accordingly, this Agreement shall be interpreted and governed without regard as to which Party principally drafted this Agreement. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original instrument.
IN WITNESS WHEREOF, the Parties have entered into this Agreement effective as of the Effective Date defined above:
Online Resources Corporation ACI Worldwide, Inc.
By: /s/ Joseph L. Cowan By: /s/ Dennis P. Byrnes
Joseph L. Cowan Name:Dennis P. Byrnes
President and CEO Title: Executive Vice President
Notice Address: Notice Address:
4795 Meadow Wood Lane 6060 Coventry Drive
Chantilly, VA 20151 Elkhorn, NE 68022
Email: [email protected] Email: [email protected]
Fax: 703.653.2605 Fax: 402.778.2567
JOINDER AGREEMENT
By executing this Joinder Agreement, PricewaterhouseCoopers (the “Joining Party”), hereby irrevocably agrees, effective as of the date hereof, to become a party to the Non-Disclosure and Confidentiality Agreement (the “Confidentiality Agreement”), dated November 15, 2012, between Online Resources Corporation and ACI Worldwide, Inc. (“ACIW”). as if it were the “Receiving Party” (as therein defined). Without limiting the foregoing, the Joining Party hereby acknowledges and agrees that (1) it has been furnished a copy of the Confidentiality Agreement and (2) the Joining Party will observe all obligations of a “Receiving Party” there under. Upon execution and delivery of this Joinder Agreement, the obligations of ACIW and PricewaterhouseCoopers will be several and neither of them will have any liability for breaches thereof by the other or the other’s agents.
Dated: January 4, 2013 PricewaterhouseCoopers
By: /s/ Sanjay Subramanian
Name: Sanjay Subramanian
Title: Principal
Accepted by:
ONLINE RESOURCES CORPORATION
By: /s/ Thomas Ball
Name: Thomas Ball
Title: VP & General Counsel
ACI WORLDWIDE, INC.
By: /s/ Dennis Byrnes
Name: Dennis Byrnes
Title: EVP
| Entailment |
536_nda-12 | 536_nda-12_0 | Q: Receiving Party may independently develop information similar to Confidential Information.
Text: Exhibit (e)(6)
NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT
This Non-Disclosure and Confidentiality Agreement (this “Agreement”), effective as of November 15, 2012 (“Effective Date”), is made and entered into by and between Online Resources Corporation, a Delaware corporation (“ORCC”), and ACI Worldwide, Inc., a Delaware corporation (“Receiving Party”).
WHEREAS, ORCC and Receiving Party (the “Parties”) wish to explore the possibility of engaging in a potential transaction (a “Transaction”);
WHEREAS, in connection with a possible Transaction, Receiving Party desires to gain access to certain Confidential Information (as such terra is defined below) of ORCC; and
WHEREAS, ORCC is willing to disclose such Confidential Information to Receiving Party upon the terms and subject to the conditions set forth in this Agreement.
NOW THEREFORE, in consideration of the foregoing premises the Parties, intending to be legally bound, agree as follows:
1. Confidential Information: Scope.
(a) As used in this Agreement, “Confidential Information” means and includes any and all confidential and/or proprietary information and data, whether in written, tangible, intangible, digital, electronic or oral form, that is disclosed or made available by or on behalf of ORCC to Receiving Party or its Representatives, including without limitation all record-bearing media containing or disclosing such information, relating to the business or operations of ORCC, or is derived therefrom, and includes (without limitation), any and all: (i) non-public, confidential and/or proprietary information of any third party in the possession of ORCC; (ii) ORCC trade secrets, techniques, discoveries, ideas, inventions, concepts, software in various states of development, designs, drawings, images, specifications, data, diagrams, research, economic and financial analyses, strategic plans and analyses, marketing and advertising techniques, client (or customer) and vendor names, client data, new product launches, price data, sales data, personnel files and materials, and all record-bearing media containing or disclosing such information; (iii) all identifiable and/or sensitive “personal information” (as such term is defined in the federal Gramm-Leach-Bliley Act of 1999, as amended) of end users of ORCC’s services, without specific designation as such (including, but not limited to, names, addresses, social security numbers, account numbers and account balances), and all record-bearing media containing or disclosing such information; and (iv) financial information, including (if provided) financial forecasts, projections or plans. All such information shall be treated as ORCC’s Confidential Information under this Agreement regardless of whether or not it is marked or identified as “Confidential Information.” Except as provided in Section 4, neither Party shall announce, disclose or publicize in any manner this Agreement, the terms, or any discussions or negotiations covered by or relating to this Agreement (including with respect to any Transaction) without the prior written consent of the other Party.
(b) As used in this Agreement, “Confidential Information” specifically excludes any information that: (i) has been or becomes publicly available or is now, or in the future, in the public domain in each case without any breach of this Agreement; (ii) prior to disclosure to Receiving Party hereunder, is within the possession of Receiving Party without any obligation of confidentiality; (iii) subsequent to disclosure hereunder, is lawfully received from a third party having rights therein without restriction of such third party’s or Receiving Party’s right to disseminate such information, and without notice of any restriction against its further disclosure; or (iv) is independently developed by Receiving Party by way of persons or entities which have not used, referenced or had access to (directly or indirectly) Confidential Information.
(c) ALL CONFIDENTIAL INFORMATION PROVIDED BY ORCC UNDER THIS AGREEMENT IS PROVIDED “AS IS”. ORCC MAKES ABSOLUTELY NO REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS, IMPLIED OR OTHERWISE, REGARDING THE ACCURACY, COMPLETENESS OR UTILITY OF ANY CONFIDENTIAL INFORMATION.
2. Use. Restriction of Confidential Information. ORCC will disclose certain Confidential Information to Receiving Party solely for the mutually acknowledged purpose recited above, and Receiving Party shall use such Confidential Information only for such purpose. Except to the extent expressly permitted under this Agreement, Receiving Party shall not disclose, disseminate or cause or permit any disclosure or unauthorized use of any Confidential Information, nor shall Receiving Party make any copies, reproductions, summaries or excerpts of any Confidential Information. Receiving Party shall not use any Confidential Information, including, without limitation, any Technical Information, as a basis for developing, marketing or providing products or services that compete (whether directly or indirectly) with the products or services that ORCC sells, markets or provides to its customers. Receiving Party shall at all times protect Confidential Information, using at minimum those measures that it takes to protect its own Confidential Information of a similar nature (provided that such measures are consistent with at least a reasonable degree of care); provided, however, that nothing herein shall relieve Receiving Party of its liability for unauthorized disclosure or use of Confidential Information. In the event Receiving Party loses or causes an unauthorized disclosure of Confidential Information, it will notify ORCC promptly after becoming aware of such disclosure, and will use commercially reasonable efforts to secure the retrieval and return of such Confidential Information. Any delay or failure by ORCC to enforce its rights in the event of any breach of this Agreement shall not be construed to constitute a waiver or release of its rights with respect to such breach or any subsequent breach.
3. Permitted Disclosure. Receiving Party may only disclose Confidential Information provided to it by ORCC hereunder to Receiving Party’s officers, directors, subsidiaries, affiliates, employees, legal counsel, financial advisors and other duly authorized agents and consultants (its “Representatives”) each of whom Receiving Party reasonably determines need to know such Confidential Information for the purpose of assisting the Receiving Party in its evaluation of a Transaction as set forth in this Agreement; provided, however, that Receiving Party shall, prior to disclosing Confidential Information to one or more Representatives in each instance, inform such Representatives of the confidential nature of the Confidential Information and instruct them to maintain the confidentiality of such Confidential Information in a manner consistent with the terms and conditions of this Agreement.
4. Required Disclosure. Except as provided elsewhere in this Section 4, if a Party determines in good faith that it is required under applicable law or legal process to disclose any Confidential Information of a type referred to in clauses (i), (ii), (iii) or (iv) of Section 1(a) (such Confidential Information “Technical Information”), such Party shall give the other Party prompt notice of such fact so that the other Party may obtain a protective order or any other appropriate remedy concerning any such disclosure and/or waive compliance with the nondisclosure requirements of this Agreement. The disclosing Party will reasonably cooperate with the other Party in connection with the other Party’s efforts to obtain any such order or other remedy. If any such order or other remedy does not fully preclude disclosure, or if the other Party waives such compliance, the disclosing Party may make such disclosure, to the extent that the disclosing Party determines in good faith that such disclosure is required under applicable law or legal process, and the disclosing Party will use its best efforts to have confidential treatment accorded to the disclosed Confidential Information. Notwithstanding the foregoing, the Receiving Party may publicly disclose (i) Confidential Information of the type set forth in clause (iv) of Section 1 (a) above and (ii) the fact that the Parties are or have been discussing a proposed Transaction and/or the terms of such proposed Transaction, in each case, only if and to the extent that the Receiving Party determines in good faith based on an opinion of legal counsel that it is required to do so under applicable law or subpoena or other legal process in connection with a Transaction, provided that the Receiving Party furnishes a copy of the proposed disclosure ORCC not less than five business days prior to such disclosure (unless the disclosing Party determines in good faith that it is not reasonably practicable to give such advance notice) and considers in good faith ORCC’s comments on such proposed disclosure. For the avoidance of doubt, this Agreement is not intended to restrict Receiving Party from making any public or private proposal or offer to acquire ORCC or its securities for all cash consideration, or from making such public disclosure in connection therewith as Receiving Party may determine in good faith based on an opinion of legal counsel to be required in accordance with the preceding sentence. Notwithstanding the foregoing, ORCC may publicly disclose the fact that the Parties are or have been discussing a proposed Transaction and/or the terms of such proposed Transaction only if and to the extent that it determines in good faith that it is required to do so under applicable law or legal process in connection with a Transaction, provided that ORCC gives the Receiving Party notice thereof three business days prior to such disclosure unless ORCC determines in good faith that it is not reasonably practicable to give such advance notice.
5. Term of Obligations: Return of Confidential Information. This Agreement shall control and govern all Confidential Information disclosed by ORCC to Receiving Party from and after the Effective Date (as defined above) for a period of one (1) year (the “Term”) unless earlier terminated by the Parties in a separate agreement or instrument executed by both Parties. Promptly upon the expiration or termination of this Agreement, or with respect to Technical Information only, upon. ORCC’s reasonable written request, Receiving Party shall return or destroy all written material (if any) containing or reflecting any Confidential Information. Receiving Party shall direct its Representatives to promptly undertake the same measures described in the preceding sentence. In the event Receiving Party elects to destroy Confidential Information, Receiving Party shall provide ORCC with written certification of such destruction executed by Receiving Party’s officer who supervised such destruction. Notwithstanding the foregoing, Receiving Party may retain only such copies of Confidential Information, subject to the terms and conditions hereunder, as may be necessary or required in accordance with Receiving Party’s internal records retention policies and procedures for applicable legal, compliance and regulatory purposes, provided that counsel to Receiving Party may retain copies of Confidential Information of a type set forth in clause (iv) of Section 1(a) hereof as it determines in good faith to be necessary to advise
Receiving Party in connection with any disclosure permitted by Section 4 hereof provided that all such Confidential Information shall remain subject to the provisions of this Agreement for so long as such information is retained notwithstanding any time limitations set forth in this Agreement, Receiving Party’s obligations to protect Confidential Information received during the Term shall survive and continue for 1 year from and after the Effective Date; provided, however, that (i) Receiving Party’s obligations with respect to Confidential Information that constitutes a trade secret under applicable law shall survive and continue for the longer of 1 year or as long as the same remains a trade secret under applicable law and (ii) this Section 5 will not apply to any information that Receiving Party or its Representatives has previously disclosed as permitted by this Agreement.
6. Ownership of Confidential Information. ORCC owns and shall retain all right, title and interest in and to all Confidential Information, regardless of disclosure hereunder. Absolutely no present or future patent, copyright, trademark, trade secret right or other intellectual property right, nor any right, license, title or interest of any kind, is given, granted, transferred or otherwise conveyed by or under this Agreement with respect to any Confidential Information. Receiving Party shall not reverse-engineer, decompile or disassemble any software disclosed under this Agreement and shall not remove, overprint or change any notice, including as to ownership or confidentiality from any originals or copies of Confidential Information.
7. Equitable Relief. Each Party acknowledges and agrees that a breach of any of its obligations hereunder could cause serious and irreparable harm to the other Party that could not adequately be compensated by monetary damages. Accordingly each Party agrees that, in addition to any of remedies to which the other Party may be entitled at law or in equity, each Party shall be entitled to seek an injunction or injunctions to compel specific performance.
8. Definitive Agreement. Nothing contained in this Agreement binds, commits or imposes any obligation upon either Party to pursue or consummate a Transaction, or to enter into any negotiation or agreement regarding a Transaction or any other business relationship. Unless and until the Parties execute and enter into a separate written, agreement that by its terms is expressly intended to be definitive and mutually binding, neither Party shall be under any obligation of any kind with respect to a Transaction, whether by virtue of this Agreement or any written or oral expression with respect to a Transaction by any person.
9. Further Restrictions.
Each Party hereby acknowledges that the stock of ORCC is publicly traded on the NASDAQ Exchange and that federal securities laws prohibit persons in possession of material non-public information and may, depending on the circumstances, prohibit purchasing or selling the stock of ORCC unless such information is publicly disclosed.
10. Non-Solicitation. For one (1) year from the Effective Date, Receiving Party (including its subsidiaries and affiliates) shall not directly or indirectly solicit, hire or engage ORCC’s employees with whom Receiving Party comes into contact, or of whom it becomes aware, in connection with this Agreement or a Transaction and whose annual base salary from ORCC exceeds $150,000, except with ORCC’s prior written consent; provided, however, that the foregoing restriction shall not apply to the hiring of ORCC’s employees who may respond to internet or other advertisements of general circulation and not specifically targeted at such employees or any action in which no Representative of Receiving Party is involved or aware of the existence of this Agreement or discussions of a possible Transaction.
11. Notice. Any notice which may or is required to be given pursuant to this Agreement shall be in writing and shall be sufficiently given or made if (a) emailed or sent by fax, (b) sent via nationally recognized overnight courier, or (c) served personally upon the Party for whom it is intended, and in each event shall be addressed to the President, Chief Executive Officer or General Counsel of the other Party at its notice address provided under its signature below. The date of receipt of any notice under this Agreement shall be as follows: (i) if served personally, on the date of delivery thereof; (ii) if sent by overnight courier, on the next business day after transmission; and (iii) if emailed or sent by fax, on the next business day after dispatch.
12. No Waiver. No failure or delay by a Party in exercising any of its rights shall operate as a waiver thereof, and no single or partial exercise of any right will preclude any other or further exercise thereof.
13. Severability. In the event that any provision or portion of this Agreement is determined to be invalid or unenforceable for any reason, in whole or in part, the remaining provisions of this Agreement shall be unaffected thereby and shall remain in full force and effect to the fullest extent permitted by applicable law.
14. Restrictions on. Export. A Receiving Party will not export, directly or indirectly, any technical data acquired from the Disclosing Party or any product utilizing any such data to any country for which the U.S. government or any agency thereof at the time of export requires an export license or other governmental approval, without-first obtaining (in each instance) such license or approval and only after receiving express authorization from the Disclosing Party.
15. Governing Law: Venue. The validity, construction and performance of this Agreement shall be governed by, and construed and enforced in accordance with, the applicable laws of the State of Delaware without regard to that state’s principles regarding conflict of laws or choice of laws. Each Party hereby consents, further, to the appropriate state or federal district court in Wilmington, Delaware as the proper venue and jurisdiction for the determination of any rights and the resolution of any disputes arising under or as a result of this Agreement. Nothing in this Agreement prohibits a Party from seeking specific performance, injunctive, other equitable relief, and/or damages as a remedy for a breach or threatened breach of this Agreement. The prevailing Party in any arbitration, litigation or other legal proceeding arising out of, or relating to, this Agreement shall be entitled to recover from the other Party (in addition to other relief awarded or granted) its reasonable costs and expenses, including related attorneys fees in the amount determined by the appropriate arbitrator, trial court or appellate court.
16. Entire Agreement: General Terms. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and merges and supersedes all prior and contemporaneous negotiations, discussion, memoranda and agreements pertaining thereto. Nothing in this Agreement is intended to create or shall be construed as creating an employer-employee relationship or any partnership, agency, joint venture or similar relationship with any person. This Agreement shall not be amended, modified or canceled except in a written instrument executed by both Parties. Both Parties actively participated in the preparation and negotiation of this Agreement, and accordingly, this Agreement shall be interpreted and governed without regard as to which Party principally drafted this Agreement. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original instrument.
IN WITNESS WHEREOF, the Parties have entered into this Agreement effective as of the Effective Date defined above:
Online Resources Corporation ACI Worldwide, Inc.
By: /s/ Joseph L. Cowan By: /s/ Dennis P. Byrnes
Joseph L. Cowan Name:Dennis P. Byrnes
President and CEO Title: Executive Vice President
Notice Address: Notice Address:
4795 Meadow Wood Lane 6060 Coventry Drive
Chantilly, VA 20151 Elkhorn, NE 68022
Email: [email protected] Email: [email protected]
Fax: 703.653.2605 Fax: 402.778.2567
JOINDER AGREEMENT
By executing this Joinder Agreement, PricewaterhouseCoopers (the “Joining Party”), hereby irrevocably agrees, effective as of the date hereof, to become a party to the Non-Disclosure and Confidentiality Agreement (the “Confidentiality Agreement”), dated November 15, 2012, between Online Resources Corporation and ACI Worldwide, Inc. (“ACIW”). as if it were the “Receiving Party” (as therein defined). Without limiting the foregoing, the Joining Party hereby acknowledges and agrees that (1) it has been furnished a copy of the Confidentiality Agreement and (2) the Joining Party will observe all obligations of a “Receiving Party” there under. Upon execution and delivery of this Joinder Agreement, the obligations of ACIW and PricewaterhouseCoopers will be several and neither of them will have any liability for breaches thereof by the other or the other’s agents.
Dated: January 4, 2013 PricewaterhouseCoopers
By: /s/ Sanjay Subramanian
Name: Sanjay Subramanian
Title: Principal
Accepted by:
ONLINE RESOURCES CORPORATION
By: /s/ Thomas Ball
Name: Thomas Ball
Title: VP & General Counsel
ACI WORLDWIDE, INC.
By: /s/ Dennis Byrnes
Name: Dennis Byrnes
Title: EVP
| Entailment |
536_nda-20 | 536_nda-20_0 | Q: Receiving Party may retain some Confidential Information even after the return or destruction of Confidential Information.
Text: Exhibit (e)(6)
NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT
This Non-Disclosure and Confidentiality Agreement (this “Agreement”), effective as of November 15, 2012 (“Effective Date”), is made and entered into by and between Online Resources Corporation, a Delaware corporation (“ORCC”), and ACI Worldwide, Inc., a Delaware corporation (“Receiving Party”).
WHEREAS, ORCC and Receiving Party (the “Parties”) wish to explore the possibility of engaging in a potential transaction (a “Transaction”);
WHEREAS, in connection with a possible Transaction, Receiving Party desires to gain access to certain Confidential Information (as such terra is defined below) of ORCC; and
WHEREAS, ORCC is willing to disclose such Confidential Information to Receiving Party upon the terms and subject to the conditions set forth in this Agreement.
NOW THEREFORE, in consideration of the foregoing premises the Parties, intending to be legally bound, agree as follows:
1. Confidential Information: Scope.
(a) As used in this Agreement, “Confidential Information” means and includes any and all confidential and/or proprietary information and data, whether in written, tangible, intangible, digital, electronic or oral form, that is disclosed or made available by or on behalf of ORCC to Receiving Party or its Representatives, including without limitation all record-bearing media containing or disclosing such information, relating to the business or operations of ORCC, or is derived therefrom, and includes (without limitation), any and all: (i) non-public, confidential and/or proprietary information of any third party in the possession of ORCC; (ii) ORCC trade secrets, techniques, discoveries, ideas, inventions, concepts, software in various states of development, designs, drawings, images, specifications, data, diagrams, research, economic and financial analyses, strategic plans and analyses, marketing and advertising techniques, client (or customer) and vendor names, client data, new product launches, price data, sales data, personnel files and materials, and all record-bearing media containing or disclosing such information; (iii) all identifiable and/or sensitive “personal information” (as such term is defined in the federal Gramm-Leach-Bliley Act of 1999, as amended) of end users of ORCC’s services, without specific designation as such (including, but not limited to, names, addresses, social security numbers, account numbers and account balances), and all record-bearing media containing or disclosing such information; and (iv) financial information, including (if provided) financial forecasts, projections or plans. All such information shall be treated as ORCC’s Confidential Information under this Agreement regardless of whether or not it is marked or identified as “Confidential Information.” Except as provided in Section 4, neither Party shall announce, disclose or publicize in any manner this Agreement, the terms, or any discussions or negotiations covered by or relating to this Agreement (including with respect to any Transaction) without the prior written consent of the other Party.
(b) As used in this Agreement, “Confidential Information” specifically excludes any information that: (i) has been or becomes publicly available or is now, or in the future, in the public domain in each case without any breach of this Agreement; (ii) prior to disclosure to Receiving Party hereunder, is within the possession of Receiving Party without any obligation of confidentiality; (iii) subsequent to disclosure hereunder, is lawfully received from a third party having rights therein without restriction of such third party’s or Receiving Party’s right to disseminate such information, and without notice of any restriction against its further disclosure; or (iv) is independently developed by Receiving Party by way of persons or entities which have not used, referenced or had access to (directly or indirectly) Confidential Information.
(c) ALL CONFIDENTIAL INFORMATION PROVIDED BY ORCC UNDER THIS AGREEMENT IS PROVIDED “AS IS”. ORCC MAKES ABSOLUTELY NO REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS, IMPLIED OR OTHERWISE, REGARDING THE ACCURACY, COMPLETENESS OR UTILITY OF ANY CONFIDENTIAL INFORMATION.
2. Use. Restriction of Confidential Information. ORCC will disclose certain Confidential Information to Receiving Party solely for the mutually acknowledged purpose recited above, and Receiving Party shall use such Confidential Information only for such purpose. Except to the extent expressly permitted under this Agreement, Receiving Party shall not disclose, disseminate or cause or permit any disclosure or unauthorized use of any Confidential Information, nor shall Receiving Party make any copies, reproductions, summaries or excerpts of any Confidential Information. Receiving Party shall not use any Confidential Information, including, without limitation, any Technical Information, as a basis for developing, marketing or providing products or services that compete (whether directly or indirectly) with the products or services that ORCC sells, markets or provides to its customers. Receiving Party shall at all times protect Confidential Information, using at minimum those measures that it takes to protect its own Confidential Information of a similar nature (provided that such measures are consistent with at least a reasonable degree of care); provided, however, that nothing herein shall relieve Receiving Party of its liability for unauthorized disclosure or use of Confidential Information. In the event Receiving Party loses or causes an unauthorized disclosure of Confidential Information, it will notify ORCC promptly after becoming aware of such disclosure, and will use commercially reasonable efforts to secure the retrieval and return of such Confidential Information. Any delay or failure by ORCC to enforce its rights in the event of any breach of this Agreement shall not be construed to constitute a waiver or release of its rights with respect to such breach or any subsequent breach.
3. Permitted Disclosure. Receiving Party may only disclose Confidential Information provided to it by ORCC hereunder to Receiving Party’s officers, directors, subsidiaries, affiliates, employees, legal counsel, financial advisors and other duly authorized agents and consultants (its “Representatives”) each of whom Receiving Party reasonably determines need to know such Confidential Information for the purpose of assisting the Receiving Party in its evaluation of a Transaction as set forth in this Agreement; provided, however, that Receiving Party shall, prior to disclosing Confidential Information to one or more Representatives in each instance, inform such Representatives of the confidential nature of the Confidential Information and instruct them to maintain the confidentiality of such Confidential Information in a manner consistent with the terms and conditions of this Agreement.
4. Required Disclosure. Except as provided elsewhere in this Section 4, if a Party determines in good faith that it is required under applicable law or legal process to disclose any Confidential Information of a type referred to in clauses (i), (ii), (iii) or (iv) of Section 1(a) (such Confidential Information “Technical Information”), such Party shall give the other Party prompt notice of such fact so that the other Party may obtain a protective order or any other appropriate remedy concerning any such disclosure and/or waive compliance with the nondisclosure requirements of this Agreement. The disclosing Party will reasonably cooperate with the other Party in connection with the other Party’s efforts to obtain any such order or other remedy. If any such order or other remedy does not fully preclude disclosure, or if the other Party waives such compliance, the disclosing Party may make such disclosure, to the extent that the disclosing Party determines in good faith that such disclosure is required under applicable law or legal process, and the disclosing Party will use its best efforts to have confidential treatment accorded to the disclosed Confidential Information. Notwithstanding the foregoing, the Receiving Party may publicly disclose (i) Confidential Information of the type set forth in clause (iv) of Section 1 (a) above and (ii) the fact that the Parties are or have been discussing a proposed Transaction and/or the terms of such proposed Transaction, in each case, only if and to the extent that the Receiving Party determines in good faith based on an opinion of legal counsel that it is required to do so under applicable law or subpoena or other legal process in connection with a Transaction, provided that the Receiving Party furnishes a copy of the proposed disclosure ORCC not less than five business days prior to such disclosure (unless the disclosing Party determines in good faith that it is not reasonably practicable to give such advance notice) and considers in good faith ORCC’s comments on such proposed disclosure. For the avoidance of doubt, this Agreement is not intended to restrict Receiving Party from making any public or private proposal or offer to acquire ORCC or its securities for all cash consideration, or from making such public disclosure in connection therewith as Receiving Party may determine in good faith based on an opinion of legal counsel to be required in accordance with the preceding sentence. Notwithstanding the foregoing, ORCC may publicly disclose the fact that the Parties are or have been discussing a proposed Transaction and/or the terms of such proposed Transaction only if and to the extent that it determines in good faith that it is required to do so under applicable law or legal process in connection with a Transaction, provided that ORCC gives the Receiving Party notice thereof three business days prior to such disclosure unless ORCC determines in good faith that it is not reasonably practicable to give such advance notice.
5. Term of Obligations: Return of Confidential Information. This Agreement shall control and govern all Confidential Information disclosed by ORCC to Receiving Party from and after the Effective Date (as defined above) for a period of one (1) year (the “Term”) unless earlier terminated by the Parties in a separate agreement or instrument executed by both Parties. Promptly upon the expiration or termination of this Agreement, or with respect to Technical Information only, upon. ORCC’s reasonable written request, Receiving Party shall return or destroy all written material (if any) containing or reflecting any Confidential Information. Receiving Party shall direct its Representatives to promptly undertake the same measures described in the preceding sentence. In the event Receiving Party elects to destroy Confidential Information, Receiving Party shall provide ORCC with written certification of such destruction executed by Receiving Party’s officer who supervised such destruction. Notwithstanding the foregoing, Receiving Party may retain only such copies of Confidential Information, subject to the terms and conditions hereunder, as may be necessary or required in accordance with Receiving Party’s internal records retention policies and procedures for applicable legal, compliance and regulatory purposes, provided that counsel to Receiving Party may retain copies of Confidential Information of a type set forth in clause (iv) of Section 1(a) hereof as it determines in good faith to be necessary to advise
Receiving Party in connection with any disclosure permitted by Section 4 hereof provided that all such Confidential Information shall remain subject to the provisions of this Agreement for so long as such information is retained notwithstanding any time limitations set forth in this Agreement, Receiving Party’s obligations to protect Confidential Information received during the Term shall survive and continue for 1 year from and after the Effective Date; provided, however, that (i) Receiving Party’s obligations with respect to Confidential Information that constitutes a trade secret under applicable law shall survive and continue for the longer of 1 year or as long as the same remains a trade secret under applicable law and (ii) this Section 5 will not apply to any information that Receiving Party or its Representatives has previously disclosed as permitted by this Agreement.
6. Ownership of Confidential Information. ORCC owns and shall retain all right, title and interest in and to all Confidential Information, regardless of disclosure hereunder. Absolutely no present or future patent, copyright, trademark, trade secret right or other intellectual property right, nor any right, license, title or interest of any kind, is given, granted, transferred or otherwise conveyed by or under this Agreement with respect to any Confidential Information. Receiving Party shall not reverse-engineer, decompile or disassemble any software disclosed under this Agreement and shall not remove, overprint or change any notice, including as to ownership or confidentiality from any originals or copies of Confidential Information.
7. Equitable Relief. Each Party acknowledges and agrees that a breach of any of its obligations hereunder could cause serious and irreparable harm to the other Party that could not adequately be compensated by monetary damages. Accordingly each Party agrees that, in addition to any of remedies to which the other Party may be entitled at law or in equity, each Party shall be entitled to seek an injunction or injunctions to compel specific performance.
8. Definitive Agreement. Nothing contained in this Agreement binds, commits or imposes any obligation upon either Party to pursue or consummate a Transaction, or to enter into any negotiation or agreement regarding a Transaction or any other business relationship. Unless and until the Parties execute and enter into a separate written, agreement that by its terms is expressly intended to be definitive and mutually binding, neither Party shall be under any obligation of any kind with respect to a Transaction, whether by virtue of this Agreement or any written or oral expression with respect to a Transaction by any person.
9. Further Restrictions.
Each Party hereby acknowledges that the stock of ORCC is publicly traded on the NASDAQ Exchange and that federal securities laws prohibit persons in possession of material non-public information and may, depending on the circumstances, prohibit purchasing or selling the stock of ORCC unless such information is publicly disclosed.
10. Non-Solicitation. For one (1) year from the Effective Date, Receiving Party (including its subsidiaries and affiliates) shall not directly or indirectly solicit, hire or engage ORCC’s employees with whom Receiving Party comes into contact, or of whom it becomes aware, in connection with this Agreement or a Transaction and whose annual base salary from ORCC exceeds $150,000, except with ORCC’s prior written consent; provided, however, that the foregoing restriction shall not apply to the hiring of ORCC’s employees who may respond to internet or other advertisements of general circulation and not specifically targeted at such employees or any action in which no Representative of Receiving Party is involved or aware of the existence of this Agreement or discussions of a possible Transaction.
11. Notice. Any notice which may or is required to be given pursuant to this Agreement shall be in writing and shall be sufficiently given or made if (a) emailed or sent by fax, (b) sent via nationally recognized overnight courier, or (c) served personally upon the Party for whom it is intended, and in each event shall be addressed to the President, Chief Executive Officer or General Counsel of the other Party at its notice address provided under its signature below. The date of receipt of any notice under this Agreement shall be as follows: (i) if served personally, on the date of delivery thereof; (ii) if sent by overnight courier, on the next business day after transmission; and (iii) if emailed or sent by fax, on the next business day after dispatch.
12. No Waiver. No failure or delay by a Party in exercising any of its rights shall operate as a waiver thereof, and no single or partial exercise of any right will preclude any other or further exercise thereof.
13. Severability. In the event that any provision or portion of this Agreement is determined to be invalid or unenforceable for any reason, in whole or in part, the remaining provisions of this Agreement shall be unaffected thereby and shall remain in full force and effect to the fullest extent permitted by applicable law.
14. Restrictions on. Export. A Receiving Party will not export, directly or indirectly, any technical data acquired from the Disclosing Party or any product utilizing any such data to any country for which the U.S. government or any agency thereof at the time of export requires an export license or other governmental approval, without-first obtaining (in each instance) such license or approval and only after receiving express authorization from the Disclosing Party.
15. Governing Law: Venue. The validity, construction and performance of this Agreement shall be governed by, and construed and enforced in accordance with, the applicable laws of the State of Delaware without regard to that state’s principles regarding conflict of laws or choice of laws. Each Party hereby consents, further, to the appropriate state or federal district court in Wilmington, Delaware as the proper venue and jurisdiction for the determination of any rights and the resolution of any disputes arising under or as a result of this Agreement. Nothing in this Agreement prohibits a Party from seeking specific performance, injunctive, other equitable relief, and/or damages as a remedy for a breach or threatened breach of this Agreement. The prevailing Party in any arbitration, litigation or other legal proceeding arising out of, or relating to, this Agreement shall be entitled to recover from the other Party (in addition to other relief awarded or granted) its reasonable costs and expenses, including related attorneys fees in the amount determined by the appropriate arbitrator, trial court or appellate court.
16. Entire Agreement: General Terms. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and merges and supersedes all prior and contemporaneous negotiations, discussion, memoranda and agreements pertaining thereto. Nothing in this Agreement is intended to create or shall be construed as creating an employer-employee relationship or any partnership, agency, joint venture or similar relationship with any person. This Agreement shall not be amended, modified or canceled except in a written instrument executed by both Parties. Both Parties actively participated in the preparation and negotiation of this Agreement, and accordingly, this Agreement shall be interpreted and governed without regard as to which Party principally drafted this Agreement. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original instrument.
IN WITNESS WHEREOF, the Parties have entered into this Agreement effective as of the Effective Date defined above:
Online Resources Corporation ACI Worldwide, Inc.
By: /s/ Joseph L. Cowan By: /s/ Dennis P. Byrnes
Joseph L. Cowan Name:Dennis P. Byrnes
President and CEO Title: Executive Vice President
Notice Address: Notice Address:
4795 Meadow Wood Lane 6060 Coventry Drive
Chantilly, VA 20151 Elkhorn, NE 68022
Email: [email protected] Email: [email protected]
Fax: 703.653.2605 Fax: 402.778.2567
JOINDER AGREEMENT
By executing this Joinder Agreement, PricewaterhouseCoopers (the “Joining Party”), hereby irrevocably agrees, effective as of the date hereof, to become a party to the Non-Disclosure and Confidentiality Agreement (the “Confidentiality Agreement”), dated November 15, 2012, between Online Resources Corporation and ACI Worldwide, Inc. (“ACIW”). as if it were the “Receiving Party” (as therein defined). Without limiting the foregoing, the Joining Party hereby acknowledges and agrees that (1) it has been furnished a copy of the Confidentiality Agreement and (2) the Joining Party will observe all obligations of a “Receiving Party” there under. Upon execution and delivery of this Joinder Agreement, the obligations of ACIW and PricewaterhouseCoopers will be several and neither of them will have any liability for breaches thereof by the other or the other’s agents.
Dated: January 4, 2013 PricewaterhouseCoopers
By: /s/ Sanjay Subramanian
Name: Sanjay Subramanian
Title: Principal
Accepted by:
ONLINE RESOURCES CORPORATION
By: /s/ Thomas Ball
Name: Thomas Ball
Title: VP & General Counsel
ACI WORLDWIDE, INC.
By: /s/ Dennis Byrnes
Name: Dennis Byrnes
Title: EVP
| Entailment |
536_nda-3 | 536_nda-3_0 | Q: Confidential Information may include verbally conveyed information.
Text: Exhibit (e)(6)
NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT
This Non-Disclosure and Confidentiality Agreement (this “Agreement”), effective as of November 15, 2012 (“Effective Date”), is made and entered into by and between Online Resources Corporation, a Delaware corporation (“ORCC”), and ACI Worldwide, Inc., a Delaware corporation (“Receiving Party”).
WHEREAS, ORCC and Receiving Party (the “Parties”) wish to explore the possibility of engaging in a potential transaction (a “Transaction”);
WHEREAS, in connection with a possible Transaction, Receiving Party desires to gain access to certain Confidential Information (as such terra is defined below) of ORCC; and
WHEREAS, ORCC is willing to disclose such Confidential Information to Receiving Party upon the terms and subject to the conditions set forth in this Agreement.
NOW THEREFORE, in consideration of the foregoing premises the Parties, intending to be legally bound, agree as follows:
1. Confidential Information: Scope.
(a) As used in this Agreement, “Confidential Information” means and includes any and all confidential and/or proprietary information and data, whether in written, tangible, intangible, digital, electronic or oral form, that is disclosed or made available by or on behalf of ORCC to Receiving Party or its Representatives, including without limitation all record-bearing media containing or disclosing such information, relating to the business or operations of ORCC, or is derived therefrom, and includes (without limitation), any and all: (i) non-public, confidential and/or proprietary information of any third party in the possession of ORCC; (ii) ORCC trade secrets, techniques, discoveries, ideas, inventions, concepts, software in various states of development, designs, drawings, images, specifications, data, diagrams, research, economic and financial analyses, strategic plans and analyses, marketing and advertising techniques, client (or customer) and vendor names, client data, new product launches, price data, sales data, personnel files and materials, and all record-bearing media containing or disclosing such information; (iii) all identifiable and/or sensitive “personal information” (as such term is defined in the federal Gramm-Leach-Bliley Act of 1999, as amended) of end users of ORCC’s services, without specific designation as such (including, but not limited to, names, addresses, social security numbers, account numbers and account balances), and all record-bearing media containing or disclosing such information; and (iv) financial information, including (if provided) financial forecasts, projections or plans. All such information shall be treated as ORCC’s Confidential Information under this Agreement regardless of whether or not it is marked or identified as “Confidential Information.” Except as provided in Section 4, neither Party shall announce, disclose or publicize in any manner this Agreement, the terms, or any discussions or negotiations covered by or relating to this Agreement (including with respect to any Transaction) without the prior written consent of the other Party.
(b) As used in this Agreement, “Confidential Information” specifically excludes any information that: (i) has been or becomes publicly available or is now, or in the future, in the public domain in each case without any breach of this Agreement; (ii) prior to disclosure to Receiving Party hereunder, is within the possession of Receiving Party without any obligation of confidentiality; (iii) subsequent to disclosure hereunder, is lawfully received from a third party having rights therein without restriction of such third party’s or Receiving Party’s right to disseminate such information, and without notice of any restriction against its further disclosure; or (iv) is independently developed by Receiving Party by way of persons or entities which have not used, referenced or had access to (directly or indirectly) Confidential Information.
(c) ALL CONFIDENTIAL INFORMATION PROVIDED BY ORCC UNDER THIS AGREEMENT IS PROVIDED “AS IS”. ORCC MAKES ABSOLUTELY NO REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS, IMPLIED OR OTHERWISE, REGARDING THE ACCURACY, COMPLETENESS OR UTILITY OF ANY CONFIDENTIAL INFORMATION.
2. Use. Restriction of Confidential Information. ORCC will disclose certain Confidential Information to Receiving Party solely for the mutually acknowledged purpose recited above, and Receiving Party shall use such Confidential Information only for such purpose. Except to the extent expressly permitted under this Agreement, Receiving Party shall not disclose, disseminate or cause or permit any disclosure or unauthorized use of any Confidential Information, nor shall Receiving Party make any copies, reproductions, summaries or excerpts of any Confidential Information. Receiving Party shall not use any Confidential Information, including, without limitation, any Technical Information, as a basis for developing, marketing or providing products or services that compete (whether directly or indirectly) with the products or services that ORCC sells, markets or provides to its customers. Receiving Party shall at all times protect Confidential Information, using at minimum those measures that it takes to protect its own Confidential Information of a similar nature (provided that such measures are consistent with at least a reasonable degree of care); provided, however, that nothing herein shall relieve Receiving Party of its liability for unauthorized disclosure or use of Confidential Information. In the event Receiving Party loses or causes an unauthorized disclosure of Confidential Information, it will notify ORCC promptly after becoming aware of such disclosure, and will use commercially reasonable efforts to secure the retrieval and return of such Confidential Information. Any delay or failure by ORCC to enforce its rights in the event of any breach of this Agreement shall not be construed to constitute a waiver or release of its rights with respect to such breach or any subsequent breach.
3. Permitted Disclosure. Receiving Party may only disclose Confidential Information provided to it by ORCC hereunder to Receiving Party’s officers, directors, subsidiaries, affiliates, employees, legal counsel, financial advisors and other duly authorized agents and consultants (its “Representatives”) each of whom Receiving Party reasonably determines need to know such Confidential Information for the purpose of assisting the Receiving Party in its evaluation of a Transaction as set forth in this Agreement; provided, however, that Receiving Party shall, prior to disclosing Confidential Information to one or more Representatives in each instance, inform such Representatives of the confidential nature of the Confidential Information and instruct them to maintain the confidentiality of such Confidential Information in a manner consistent with the terms and conditions of this Agreement.
4. Required Disclosure. Except as provided elsewhere in this Section 4, if a Party determines in good faith that it is required under applicable law or legal process to disclose any Confidential Information of a type referred to in clauses (i), (ii), (iii) or (iv) of Section 1(a) (such Confidential Information “Technical Information”), such Party shall give the other Party prompt notice of such fact so that the other Party may obtain a protective order or any other appropriate remedy concerning any such disclosure and/or waive compliance with the nondisclosure requirements of this Agreement. The disclosing Party will reasonably cooperate with the other Party in connection with the other Party’s efforts to obtain any such order or other remedy. If any such order or other remedy does not fully preclude disclosure, or if the other Party waives such compliance, the disclosing Party may make such disclosure, to the extent that the disclosing Party determines in good faith that such disclosure is required under applicable law or legal process, and the disclosing Party will use its best efforts to have confidential treatment accorded to the disclosed Confidential Information. Notwithstanding the foregoing, the Receiving Party may publicly disclose (i) Confidential Information of the type set forth in clause (iv) of Section 1 (a) above and (ii) the fact that the Parties are or have been discussing a proposed Transaction and/or the terms of such proposed Transaction, in each case, only if and to the extent that the Receiving Party determines in good faith based on an opinion of legal counsel that it is required to do so under applicable law or subpoena or other legal process in connection with a Transaction, provided that the Receiving Party furnishes a copy of the proposed disclosure ORCC not less than five business days prior to such disclosure (unless the disclosing Party determines in good faith that it is not reasonably practicable to give such advance notice) and considers in good faith ORCC’s comments on such proposed disclosure. For the avoidance of doubt, this Agreement is not intended to restrict Receiving Party from making any public or private proposal or offer to acquire ORCC or its securities for all cash consideration, or from making such public disclosure in connection therewith as Receiving Party may determine in good faith based on an opinion of legal counsel to be required in accordance with the preceding sentence. Notwithstanding the foregoing, ORCC may publicly disclose the fact that the Parties are or have been discussing a proposed Transaction and/or the terms of such proposed Transaction only if and to the extent that it determines in good faith that it is required to do so under applicable law or legal process in connection with a Transaction, provided that ORCC gives the Receiving Party notice thereof three business days prior to such disclosure unless ORCC determines in good faith that it is not reasonably practicable to give such advance notice.
5. Term of Obligations: Return of Confidential Information. This Agreement shall control and govern all Confidential Information disclosed by ORCC to Receiving Party from and after the Effective Date (as defined above) for a period of one (1) year (the “Term”) unless earlier terminated by the Parties in a separate agreement or instrument executed by both Parties. Promptly upon the expiration or termination of this Agreement, or with respect to Technical Information only, upon. ORCC’s reasonable written request, Receiving Party shall return or destroy all written material (if any) containing or reflecting any Confidential Information. Receiving Party shall direct its Representatives to promptly undertake the same measures described in the preceding sentence. In the event Receiving Party elects to destroy Confidential Information, Receiving Party shall provide ORCC with written certification of such destruction executed by Receiving Party’s officer who supervised such destruction. Notwithstanding the foregoing, Receiving Party may retain only such copies of Confidential Information, subject to the terms and conditions hereunder, as may be necessary or required in accordance with Receiving Party’s internal records retention policies and procedures for applicable legal, compliance and regulatory purposes, provided that counsel to Receiving Party may retain copies of Confidential Information of a type set forth in clause (iv) of Section 1(a) hereof as it determines in good faith to be necessary to advise
Receiving Party in connection with any disclosure permitted by Section 4 hereof provided that all such Confidential Information shall remain subject to the provisions of this Agreement for so long as such information is retained notwithstanding any time limitations set forth in this Agreement, Receiving Party’s obligations to protect Confidential Information received during the Term shall survive and continue for 1 year from and after the Effective Date; provided, however, that (i) Receiving Party’s obligations with respect to Confidential Information that constitutes a trade secret under applicable law shall survive and continue for the longer of 1 year or as long as the same remains a trade secret under applicable law and (ii) this Section 5 will not apply to any information that Receiving Party or its Representatives has previously disclosed as permitted by this Agreement.
6. Ownership of Confidential Information. ORCC owns and shall retain all right, title and interest in and to all Confidential Information, regardless of disclosure hereunder. Absolutely no present or future patent, copyright, trademark, trade secret right or other intellectual property right, nor any right, license, title or interest of any kind, is given, granted, transferred or otherwise conveyed by or under this Agreement with respect to any Confidential Information. Receiving Party shall not reverse-engineer, decompile or disassemble any software disclosed under this Agreement and shall not remove, overprint or change any notice, including as to ownership or confidentiality from any originals or copies of Confidential Information.
7. Equitable Relief. Each Party acknowledges and agrees that a breach of any of its obligations hereunder could cause serious and irreparable harm to the other Party that could not adequately be compensated by monetary damages. Accordingly each Party agrees that, in addition to any of remedies to which the other Party may be entitled at law or in equity, each Party shall be entitled to seek an injunction or injunctions to compel specific performance.
8. Definitive Agreement. Nothing contained in this Agreement binds, commits or imposes any obligation upon either Party to pursue or consummate a Transaction, or to enter into any negotiation or agreement regarding a Transaction or any other business relationship. Unless and until the Parties execute and enter into a separate written, agreement that by its terms is expressly intended to be definitive and mutually binding, neither Party shall be under any obligation of any kind with respect to a Transaction, whether by virtue of this Agreement or any written or oral expression with respect to a Transaction by any person.
9. Further Restrictions.
Each Party hereby acknowledges that the stock of ORCC is publicly traded on the NASDAQ Exchange and that federal securities laws prohibit persons in possession of material non-public information and may, depending on the circumstances, prohibit purchasing or selling the stock of ORCC unless such information is publicly disclosed.
10. Non-Solicitation. For one (1) year from the Effective Date, Receiving Party (including its subsidiaries and affiliates) shall not directly or indirectly solicit, hire or engage ORCC’s employees with whom Receiving Party comes into contact, or of whom it becomes aware, in connection with this Agreement or a Transaction and whose annual base salary from ORCC exceeds $150,000, except with ORCC’s prior written consent; provided, however, that the foregoing restriction shall not apply to the hiring of ORCC’s employees who may respond to internet or other advertisements of general circulation and not specifically targeted at such employees or any action in which no Representative of Receiving Party is involved or aware of the existence of this Agreement or discussions of a possible Transaction.
11. Notice. Any notice which may or is required to be given pursuant to this Agreement shall be in writing and shall be sufficiently given or made if (a) emailed or sent by fax, (b) sent via nationally recognized overnight courier, or (c) served personally upon the Party for whom it is intended, and in each event shall be addressed to the President, Chief Executive Officer or General Counsel of the other Party at its notice address provided under its signature below. The date of receipt of any notice under this Agreement shall be as follows: (i) if served personally, on the date of delivery thereof; (ii) if sent by overnight courier, on the next business day after transmission; and (iii) if emailed or sent by fax, on the next business day after dispatch.
12. No Waiver. No failure or delay by a Party in exercising any of its rights shall operate as a waiver thereof, and no single or partial exercise of any right will preclude any other or further exercise thereof.
13. Severability. In the event that any provision or portion of this Agreement is determined to be invalid or unenforceable for any reason, in whole or in part, the remaining provisions of this Agreement shall be unaffected thereby and shall remain in full force and effect to the fullest extent permitted by applicable law.
14. Restrictions on. Export. A Receiving Party will not export, directly or indirectly, any technical data acquired from the Disclosing Party or any product utilizing any such data to any country for which the U.S. government or any agency thereof at the time of export requires an export license or other governmental approval, without-first obtaining (in each instance) such license or approval and only after receiving express authorization from the Disclosing Party.
15. Governing Law: Venue. The validity, construction and performance of this Agreement shall be governed by, and construed and enforced in accordance with, the applicable laws of the State of Delaware without regard to that state’s principles regarding conflict of laws or choice of laws. Each Party hereby consents, further, to the appropriate state or federal district court in Wilmington, Delaware as the proper venue and jurisdiction for the determination of any rights and the resolution of any disputes arising under or as a result of this Agreement. Nothing in this Agreement prohibits a Party from seeking specific performance, injunctive, other equitable relief, and/or damages as a remedy for a breach or threatened breach of this Agreement. The prevailing Party in any arbitration, litigation or other legal proceeding arising out of, or relating to, this Agreement shall be entitled to recover from the other Party (in addition to other relief awarded or granted) its reasonable costs and expenses, including related attorneys fees in the amount determined by the appropriate arbitrator, trial court or appellate court.
16. Entire Agreement: General Terms. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and merges and supersedes all prior and contemporaneous negotiations, discussion, memoranda and agreements pertaining thereto. Nothing in this Agreement is intended to create or shall be construed as creating an employer-employee relationship or any partnership, agency, joint venture or similar relationship with any person. This Agreement shall not be amended, modified or canceled except in a written instrument executed by both Parties. Both Parties actively participated in the preparation and negotiation of this Agreement, and accordingly, this Agreement shall be interpreted and governed without regard as to which Party principally drafted this Agreement. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original instrument.
IN WITNESS WHEREOF, the Parties have entered into this Agreement effective as of the Effective Date defined above:
Online Resources Corporation ACI Worldwide, Inc.
By: /s/ Joseph L. Cowan By: /s/ Dennis P. Byrnes
Joseph L. Cowan Name:Dennis P. Byrnes
President and CEO Title: Executive Vice President
Notice Address: Notice Address:
4795 Meadow Wood Lane 6060 Coventry Drive
Chantilly, VA 20151 Elkhorn, NE 68022
Email: [email protected] Email: [email protected]
Fax: 703.653.2605 Fax: 402.778.2567
JOINDER AGREEMENT
By executing this Joinder Agreement, PricewaterhouseCoopers (the “Joining Party”), hereby irrevocably agrees, effective as of the date hereof, to become a party to the Non-Disclosure and Confidentiality Agreement (the “Confidentiality Agreement”), dated November 15, 2012, between Online Resources Corporation and ACI Worldwide, Inc. (“ACIW”). as if it were the “Receiving Party” (as therein defined). Without limiting the foregoing, the Joining Party hereby acknowledges and agrees that (1) it has been furnished a copy of the Confidentiality Agreement and (2) the Joining Party will observe all obligations of a “Receiving Party” there under. Upon execution and delivery of this Joinder Agreement, the obligations of ACIW and PricewaterhouseCoopers will be several and neither of them will have any liability for breaches thereof by the other or the other’s agents.
Dated: January 4, 2013 PricewaterhouseCoopers
By: /s/ Sanjay Subramanian
Name: Sanjay Subramanian
Title: Principal
Accepted by:
ONLINE RESOURCES CORPORATION
By: /s/ Thomas Ball
Name: Thomas Ball
Title: VP & General Counsel
ACI WORLDWIDE, INC.
By: /s/ Dennis Byrnes
Name: Dennis Byrnes
Title: EVP
| Entailment |
536_nda-18 | 536_nda-18_0 | Q: Receiving Party shall not solicit some of Disclosing Party's representatives.
Text: Exhibit (e)(6)
NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT
This Non-Disclosure and Confidentiality Agreement (this “Agreement”), effective as of November 15, 2012 (“Effective Date”), is made and entered into by and between Online Resources Corporation, a Delaware corporation (“ORCC”), and ACI Worldwide, Inc., a Delaware corporation (“Receiving Party”).
WHEREAS, ORCC and Receiving Party (the “Parties”) wish to explore the possibility of engaging in a potential transaction (a “Transaction”);
WHEREAS, in connection with a possible Transaction, Receiving Party desires to gain access to certain Confidential Information (as such terra is defined below) of ORCC; and
WHEREAS, ORCC is willing to disclose such Confidential Information to Receiving Party upon the terms and subject to the conditions set forth in this Agreement.
NOW THEREFORE, in consideration of the foregoing premises the Parties, intending to be legally bound, agree as follows:
1. Confidential Information: Scope.
(a) As used in this Agreement, “Confidential Information” means and includes any and all confidential and/or proprietary information and data, whether in written, tangible, intangible, digital, electronic or oral form, that is disclosed or made available by or on behalf of ORCC to Receiving Party or its Representatives, including without limitation all record-bearing media containing or disclosing such information, relating to the business or operations of ORCC, or is derived therefrom, and includes (without limitation), any and all: (i) non-public, confidential and/or proprietary information of any third party in the possession of ORCC; (ii) ORCC trade secrets, techniques, discoveries, ideas, inventions, concepts, software in various states of development, designs, drawings, images, specifications, data, diagrams, research, economic and financial analyses, strategic plans and analyses, marketing and advertising techniques, client (or customer) and vendor names, client data, new product launches, price data, sales data, personnel files and materials, and all record-bearing media containing or disclosing such information; (iii) all identifiable and/or sensitive “personal information” (as such term is defined in the federal Gramm-Leach-Bliley Act of 1999, as amended) of end users of ORCC’s services, without specific designation as such (including, but not limited to, names, addresses, social security numbers, account numbers and account balances), and all record-bearing media containing or disclosing such information; and (iv) financial information, including (if provided) financial forecasts, projections or plans. All such information shall be treated as ORCC’s Confidential Information under this Agreement regardless of whether or not it is marked or identified as “Confidential Information.” Except as provided in Section 4, neither Party shall announce, disclose or publicize in any manner this Agreement, the terms, or any discussions or negotiations covered by or relating to this Agreement (including with respect to any Transaction) without the prior written consent of the other Party.
(b) As used in this Agreement, “Confidential Information” specifically excludes any information that: (i) has been or becomes publicly available or is now, or in the future, in the public domain in each case without any breach of this Agreement; (ii) prior to disclosure to Receiving Party hereunder, is within the possession of Receiving Party without any obligation of confidentiality; (iii) subsequent to disclosure hereunder, is lawfully received from a third party having rights therein without restriction of such third party’s or Receiving Party’s right to disseminate such information, and without notice of any restriction against its further disclosure; or (iv) is independently developed by Receiving Party by way of persons or entities which have not used, referenced or had access to (directly or indirectly) Confidential Information.
(c) ALL CONFIDENTIAL INFORMATION PROVIDED BY ORCC UNDER THIS AGREEMENT IS PROVIDED “AS IS”. ORCC MAKES ABSOLUTELY NO REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS, IMPLIED OR OTHERWISE, REGARDING THE ACCURACY, COMPLETENESS OR UTILITY OF ANY CONFIDENTIAL INFORMATION.
2. Use. Restriction of Confidential Information. ORCC will disclose certain Confidential Information to Receiving Party solely for the mutually acknowledged purpose recited above, and Receiving Party shall use such Confidential Information only for such purpose. Except to the extent expressly permitted under this Agreement, Receiving Party shall not disclose, disseminate or cause or permit any disclosure or unauthorized use of any Confidential Information, nor shall Receiving Party make any copies, reproductions, summaries or excerpts of any Confidential Information. Receiving Party shall not use any Confidential Information, including, without limitation, any Technical Information, as a basis for developing, marketing or providing products or services that compete (whether directly or indirectly) with the products or services that ORCC sells, markets or provides to its customers. Receiving Party shall at all times protect Confidential Information, using at minimum those measures that it takes to protect its own Confidential Information of a similar nature (provided that such measures are consistent with at least a reasonable degree of care); provided, however, that nothing herein shall relieve Receiving Party of its liability for unauthorized disclosure or use of Confidential Information. In the event Receiving Party loses or causes an unauthorized disclosure of Confidential Information, it will notify ORCC promptly after becoming aware of such disclosure, and will use commercially reasonable efforts to secure the retrieval and return of such Confidential Information. Any delay or failure by ORCC to enforce its rights in the event of any breach of this Agreement shall not be construed to constitute a waiver or release of its rights with respect to such breach or any subsequent breach.
3. Permitted Disclosure. Receiving Party may only disclose Confidential Information provided to it by ORCC hereunder to Receiving Party’s officers, directors, subsidiaries, affiliates, employees, legal counsel, financial advisors and other duly authorized agents and consultants (its “Representatives”) each of whom Receiving Party reasonably determines need to know such Confidential Information for the purpose of assisting the Receiving Party in its evaluation of a Transaction as set forth in this Agreement; provided, however, that Receiving Party shall, prior to disclosing Confidential Information to one or more Representatives in each instance, inform such Representatives of the confidential nature of the Confidential Information and instruct them to maintain the confidentiality of such Confidential Information in a manner consistent with the terms and conditions of this Agreement.
4. Required Disclosure. Except as provided elsewhere in this Section 4, if a Party determines in good faith that it is required under applicable law or legal process to disclose any Confidential Information of a type referred to in clauses (i), (ii), (iii) or (iv) of Section 1(a) (such Confidential Information “Technical Information”), such Party shall give the other Party prompt notice of such fact so that the other Party may obtain a protective order or any other appropriate remedy concerning any such disclosure and/or waive compliance with the nondisclosure requirements of this Agreement. The disclosing Party will reasonably cooperate with the other Party in connection with the other Party’s efforts to obtain any such order or other remedy. If any such order or other remedy does not fully preclude disclosure, or if the other Party waives such compliance, the disclosing Party may make such disclosure, to the extent that the disclosing Party determines in good faith that such disclosure is required under applicable law or legal process, and the disclosing Party will use its best efforts to have confidential treatment accorded to the disclosed Confidential Information. Notwithstanding the foregoing, the Receiving Party may publicly disclose (i) Confidential Information of the type set forth in clause (iv) of Section 1 (a) above and (ii) the fact that the Parties are or have been discussing a proposed Transaction and/or the terms of such proposed Transaction, in each case, only if and to the extent that the Receiving Party determines in good faith based on an opinion of legal counsel that it is required to do so under applicable law or subpoena or other legal process in connection with a Transaction, provided that the Receiving Party furnishes a copy of the proposed disclosure ORCC not less than five business days prior to such disclosure (unless the disclosing Party determines in good faith that it is not reasonably practicable to give such advance notice) and considers in good faith ORCC’s comments on such proposed disclosure. For the avoidance of doubt, this Agreement is not intended to restrict Receiving Party from making any public or private proposal or offer to acquire ORCC or its securities for all cash consideration, or from making such public disclosure in connection therewith as Receiving Party may determine in good faith based on an opinion of legal counsel to be required in accordance with the preceding sentence. Notwithstanding the foregoing, ORCC may publicly disclose the fact that the Parties are or have been discussing a proposed Transaction and/or the terms of such proposed Transaction only if and to the extent that it determines in good faith that it is required to do so under applicable law or legal process in connection with a Transaction, provided that ORCC gives the Receiving Party notice thereof three business days prior to such disclosure unless ORCC determines in good faith that it is not reasonably practicable to give such advance notice.
5. Term of Obligations: Return of Confidential Information. This Agreement shall control and govern all Confidential Information disclosed by ORCC to Receiving Party from and after the Effective Date (as defined above) for a period of one (1) year (the “Term”) unless earlier terminated by the Parties in a separate agreement or instrument executed by both Parties. Promptly upon the expiration or termination of this Agreement, or with respect to Technical Information only, upon. ORCC’s reasonable written request, Receiving Party shall return or destroy all written material (if any) containing or reflecting any Confidential Information. Receiving Party shall direct its Representatives to promptly undertake the same measures described in the preceding sentence. In the event Receiving Party elects to destroy Confidential Information, Receiving Party shall provide ORCC with written certification of such destruction executed by Receiving Party’s officer who supervised such destruction. Notwithstanding the foregoing, Receiving Party may retain only such copies of Confidential Information, subject to the terms and conditions hereunder, as may be necessary or required in accordance with Receiving Party’s internal records retention policies and procedures for applicable legal, compliance and regulatory purposes, provided that counsel to Receiving Party may retain copies of Confidential Information of a type set forth in clause (iv) of Section 1(a) hereof as it determines in good faith to be necessary to advise
Receiving Party in connection with any disclosure permitted by Section 4 hereof provided that all such Confidential Information shall remain subject to the provisions of this Agreement for so long as such information is retained notwithstanding any time limitations set forth in this Agreement, Receiving Party’s obligations to protect Confidential Information received during the Term shall survive and continue for 1 year from and after the Effective Date; provided, however, that (i) Receiving Party’s obligations with respect to Confidential Information that constitutes a trade secret under applicable law shall survive and continue for the longer of 1 year or as long as the same remains a trade secret under applicable law and (ii) this Section 5 will not apply to any information that Receiving Party or its Representatives has previously disclosed as permitted by this Agreement.
6. Ownership of Confidential Information. ORCC owns and shall retain all right, title and interest in and to all Confidential Information, regardless of disclosure hereunder. Absolutely no present or future patent, copyright, trademark, trade secret right or other intellectual property right, nor any right, license, title or interest of any kind, is given, granted, transferred or otherwise conveyed by or under this Agreement with respect to any Confidential Information. Receiving Party shall not reverse-engineer, decompile or disassemble any software disclosed under this Agreement and shall not remove, overprint or change any notice, including as to ownership or confidentiality from any originals or copies of Confidential Information.
7. Equitable Relief. Each Party acknowledges and agrees that a breach of any of its obligations hereunder could cause serious and irreparable harm to the other Party that could not adequately be compensated by monetary damages. Accordingly each Party agrees that, in addition to any of remedies to which the other Party may be entitled at law or in equity, each Party shall be entitled to seek an injunction or injunctions to compel specific performance.
8. Definitive Agreement. Nothing contained in this Agreement binds, commits or imposes any obligation upon either Party to pursue or consummate a Transaction, or to enter into any negotiation or agreement regarding a Transaction or any other business relationship. Unless and until the Parties execute and enter into a separate written, agreement that by its terms is expressly intended to be definitive and mutually binding, neither Party shall be under any obligation of any kind with respect to a Transaction, whether by virtue of this Agreement or any written or oral expression with respect to a Transaction by any person.
9. Further Restrictions.
Each Party hereby acknowledges that the stock of ORCC is publicly traded on the NASDAQ Exchange and that federal securities laws prohibit persons in possession of material non-public information and may, depending on the circumstances, prohibit purchasing or selling the stock of ORCC unless such information is publicly disclosed.
10. Non-Solicitation. For one (1) year from the Effective Date, Receiving Party (including its subsidiaries and affiliates) shall not directly or indirectly solicit, hire or engage ORCC’s employees with whom Receiving Party comes into contact, or of whom it becomes aware, in connection with this Agreement or a Transaction and whose annual base salary from ORCC exceeds $150,000, except with ORCC’s prior written consent; provided, however, that the foregoing restriction shall not apply to the hiring of ORCC’s employees who may respond to internet or other advertisements of general circulation and not specifically targeted at such employees or any action in which no Representative of Receiving Party is involved or aware of the existence of this Agreement or discussions of a possible Transaction.
11. Notice. Any notice which may or is required to be given pursuant to this Agreement shall be in writing and shall be sufficiently given or made if (a) emailed or sent by fax, (b) sent via nationally recognized overnight courier, or (c) served personally upon the Party for whom it is intended, and in each event shall be addressed to the President, Chief Executive Officer or General Counsel of the other Party at its notice address provided under its signature below. The date of receipt of any notice under this Agreement shall be as follows: (i) if served personally, on the date of delivery thereof; (ii) if sent by overnight courier, on the next business day after transmission; and (iii) if emailed or sent by fax, on the next business day after dispatch.
12. No Waiver. No failure or delay by a Party in exercising any of its rights shall operate as a waiver thereof, and no single or partial exercise of any right will preclude any other or further exercise thereof.
13. Severability. In the event that any provision or portion of this Agreement is determined to be invalid or unenforceable for any reason, in whole or in part, the remaining provisions of this Agreement shall be unaffected thereby and shall remain in full force and effect to the fullest extent permitted by applicable law.
14. Restrictions on. Export. A Receiving Party will not export, directly or indirectly, any technical data acquired from the Disclosing Party or any product utilizing any such data to any country for which the U.S. government or any agency thereof at the time of export requires an export license or other governmental approval, without-first obtaining (in each instance) such license or approval and only after receiving express authorization from the Disclosing Party.
15. Governing Law: Venue. The validity, construction and performance of this Agreement shall be governed by, and construed and enforced in accordance with, the applicable laws of the State of Delaware without regard to that state’s principles regarding conflict of laws or choice of laws. Each Party hereby consents, further, to the appropriate state or federal district court in Wilmington, Delaware as the proper venue and jurisdiction for the determination of any rights and the resolution of any disputes arising under or as a result of this Agreement. Nothing in this Agreement prohibits a Party from seeking specific performance, injunctive, other equitable relief, and/or damages as a remedy for a breach or threatened breach of this Agreement. The prevailing Party in any arbitration, litigation or other legal proceeding arising out of, or relating to, this Agreement shall be entitled to recover from the other Party (in addition to other relief awarded or granted) its reasonable costs and expenses, including related attorneys fees in the amount determined by the appropriate arbitrator, trial court or appellate court.
16. Entire Agreement: General Terms. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and merges and supersedes all prior and contemporaneous negotiations, discussion, memoranda and agreements pertaining thereto. Nothing in this Agreement is intended to create or shall be construed as creating an employer-employee relationship or any partnership, agency, joint venture or similar relationship with any person. This Agreement shall not be amended, modified or canceled except in a written instrument executed by both Parties. Both Parties actively participated in the preparation and negotiation of this Agreement, and accordingly, this Agreement shall be interpreted and governed without regard as to which Party principally drafted this Agreement. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original instrument.
IN WITNESS WHEREOF, the Parties have entered into this Agreement effective as of the Effective Date defined above:
Online Resources Corporation ACI Worldwide, Inc.
By: /s/ Joseph L. Cowan By: /s/ Dennis P. Byrnes
Joseph L. Cowan Name:Dennis P. Byrnes
President and CEO Title: Executive Vice President
Notice Address: Notice Address:
4795 Meadow Wood Lane 6060 Coventry Drive
Chantilly, VA 20151 Elkhorn, NE 68022
Email: [email protected] Email: [email protected]
Fax: 703.653.2605 Fax: 402.778.2567
JOINDER AGREEMENT
By executing this Joinder Agreement, PricewaterhouseCoopers (the “Joining Party”), hereby irrevocably agrees, effective as of the date hereof, to become a party to the Non-Disclosure and Confidentiality Agreement (the “Confidentiality Agreement”), dated November 15, 2012, between Online Resources Corporation and ACI Worldwide, Inc. (“ACIW”). as if it were the “Receiving Party” (as therein defined). Without limiting the foregoing, the Joining Party hereby acknowledges and agrees that (1) it has been furnished a copy of the Confidentiality Agreement and (2) the Joining Party will observe all obligations of a “Receiving Party” there under. Upon execution and delivery of this Joinder Agreement, the obligations of ACIW and PricewaterhouseCoopers will be several and neither of them will have any liability for breaches thereof by the other or the other’s agents.
Dated: January 4, 2013 PricewaterhouseCoopers
By: /s/ Sanjay Subramanian
Name: Sanjay Subramanian
Title: Principal
Accepted by:
ONLINE RESOURCES CORPORATION
By: /s/ Thomas Ball
Name: Thomas Ball
Title: VP & General Counsel
ACI WORLDWIDE, INC.
By: /s/ Dennis Byrnes
Name: Dennis Byrnes
Title: EVP
| Entailment |
536_nda-7 | 536_nda-7_0 | Q: Receiving Party may share some Confidential Information with some third-parties (including consultants, agents and professional advisors).
Text: Exhibit (e)(6)
NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT
This Non-Disclosure and Confidentiality Agreement (this “Agreement”), effective as of November 15, 2012 (“Effective Date”), is made and entered into by and between Online Resources Corporation, a Delaware corporation (“ORCC”), and ACI Worldwide, Inc., a Delaware corporation (“Receiving Party”).
WHEREAS, ORCC and Receiving Party (the “Parties”) wish to explore the possibility of engaging in a potential transaction (a “Transaction”);
WHEREAS, in connection with a possible Transaction, Receiving Party desires to gain access to certain Confidential Information (as such terra is defined below) of ORCC; and
WHEREAS, ORCC is willing to disclose such Confidential Information to Receiving Party upon the terms and subject to the conditions set forth in this Agreement.
NOW THEREFORE, in consideration of the foregoing premises the Parties, intending to be legally bound, agree as follows:
1. Confidential Information: Scope.
(a) As used in this Agreement, “Confidential Information” means and includes any and all confidential and/or proprietary information and data, whether in written, tangible, intangible, digital, electronic or oral form, that is disclosed or made available by or on behalf of ORCC to Receiving Party or its Representatives, including without limitation all record-bearing media containing or disclosing such information, relating to the business or operations of ORCC, or is derived therefrom, and includes (without limitation), any and all: (i) non-public, confidential and/or proprietary information of any third party in the possession of ORCC; (ii) ORCC trade secrets, techniques, discoveries, ideas, inventions, concepts, software in various states of development, designs, drawings, images, specifications, data, diagrams, research, economic and financial analyses, strategic plans and analyses, marketing and advertising techniques, client (or customer) and vendor names, client data, new product launches, price data, sales data, personnel files and materials, and all record-bearing media containing or disclosing such information; (iii) all identifiable and/or sensitive “personal information” (as such term is defined in the federal Gramm-Leach-Bliley Act of 1999, as amended) of end users of ORCC’s services, without specific designation as such (including, but not limited to, names, addresses, social security numbers, account numbers and account balances), and all record-bearing media containing or disclosing such information; and (iv) financial information, including (if provided) financial forecasts, projections or plans. All such information shall be treated as ORCC’s Confidential Information under this Agreement regardless of whether or not it is marked or identified as “Confidential Information.” Except as provided in Section 4, neither Party shall announce, disclose or publicize in any manner this Agreement, the terms, or any discussions or negotiations covered by or relating to this Agreement (including with respect to any Transaction) without the prior written consent of the other Party.
(b) As used in this Agreement, “Confidential Information” specifically excludes any information that: (i) has been or becomes publicly available or is now, or in the future, in the public domain in each case without any breach of this Agreement; (ii) prior to disclosure to Receiving Party hereunder, is within the possession of Receiving Party without any obligation of confidentiality; (iii) subsequent to disclosure hereunder, is lawfully received from a third party having rights therein without restriction of such third party’s or Receiving Party’s right to disseminate such information, and without notice of any restriction against its further disclosure; or (iv) is independently developed by Receiving Party by way of persons or entities which have not used, referenced or had access to (directly or indirectly) Confidential Information.
(c) ALL CONFIDENTIAL INFORMATION PROVIDED BY ORCC UNDER THIS AGREEMENT IS PROVIDED “AS IS”. ORCC MAKES ABSOLUTELY NO REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS, IMPLIED OR OTHERWISE, REGARDING THE ACCURACY, COMPLETENESS OR UTILITY OF ANY CONFIDENTIAL INFORMATION.
2. Use. Restriction of Confidential Information. ORCC will disclose certain Confidential Information to Receiving Party solely for the mutually acknowledged purpose recited above, and Receiving Party shall use such Confidential Information only for such purpose. Except to the extent expressly permitted under this Agreement, Receiving Party shall not disclose, disseminate or cause or permit any disclosure or unauthorized use of any Confidential Information, nor shall Receiving Party make any copies, reproductions, summaries or excerpts of any Confidential Information. Receiving Party shall not use any Confidential Information, including, without limitation, any Technical Information, as a basis for developing, marketing or providing products or services that compete (whether directly or indirectly) with the products or services that ORCC sells, markets or provides to its customers. Receiving Party shall at all times protect Confidential Information, using at minimum those measures that it takes to protect its own Confidential Information of a similar nature (provided that such measures are consistent with at least a reasonable degree of care); provided, however, that nothing herein shall relieve Receiving Party of its liability for unauthorized disclosure or use of Confidential Information. In the event Receiving Party loses or causes an unauthorized disclosure of Confidential Information, it will notify ORCC promptly after becoming aware of such disclosure, and will use commercially reasonable efforts to secure the retrieval and return of such Confidential Information. Any delay or failure by ORCC to enforce its rights in the event of any breach of this Agreement shall not be construed to constitute a waiver or release of its rights with respect to such breach or any subsequent breach.
3. Permitted Disclosure. Receiving Party may only disclose Confidential Information provided to it by ORCC hereunder to Receiving Party’s officers, directors, subsidiaries, affiliates, employees, legal counsel, financial advisors and other duly authorized agents and consultants (its “Representatives”) each of whom Receiving Party reasonably determines need to know such Confidential Information for the purpose of assisting the Receiving Party in its evaluation of a Transaction as set forth in this Agreement; provided, however, that Receiving Party shall, prior to disclosing Confidential Information to one or more Representatives in each instance, inform such Representatives of the confidential nature of the Confidential Information and instruct them to maintain the confidentiality of such Confidential Information in a manner consistent with the terms and conditions of this Agreement.
4. Required Disclosure. Except as provided elsewhere in this Section 4, if a Party determines in good faith that it is required under applicable law or legal process to disclose any Confidential Information of a type referred to in clauses (i), (ii), (iii) or (iv) of Section 1(a) (such Confidential Information “Technical Information”), such Party shall give the other Party prompt notice of such fact so that the other Party may obtain a protective order or any other appropriate remedy concerning any such disclosure and/or waive compliance with the nondisclosure requirements of this Agreement. The disclosing Party will reasonably cooperate with the other Party in connection with the other Party’s efforts to obtain any such order or other remedy. If any such order or other remedy does not fully preclude disclosure, or if the other Party waives such compliance, the disclosing Party may make such disclosure, to the extent that the disclosing Party determines in good faith that such disclosure is required under applicable law or legal process, and the disclosing Party will use its best efforts to have confidential treatment accorded to the disclosed Confidential Information. Notwithstanding the foregoing, the Receiving Party may publicly disclose (i) Confidential Information of the type set forth in clause (iv) of Section 1 (a) above and (ii) the fact that the Parties are or have been discussing a proposed Transaction and/or the terms of such proposed Transaction, in each case, only if and to the extent that the Receiving Party determines in good faith based on an opinion of legal counsel that it is required to do so under applicable law or subpoena or other legal process in connection with a Transaction, provided that the Receiving Party furnishes a copy of the proposed disclosure ORCC not less than five business days prior to such disclosure (unless the disclosing Party determines in good faith that it is not reasonably practicable to give such advance notice) and considers in good faith ORCC’s comments on such proposed disclosure. For the avoidance of doubt, this Agreement is not intended to restrict Receiving Party from making any public or private proposal or offer to acquire ORCC or its securities for all cash consideration, or from making such public disclosure in connection therewith as Receiving Party may determine in good faith based on an opinion of legal counsel to be required in accordance with the preceding sentence. Notwithstanding the foregoing, ORCC may publicly disclose the fact that the Parties are or have been discussing a proposed Transaction and/or the terms of such proposed Transaction only if and to the extent that it determines in good faith that it is required to do so under applicable law or legal process in connection with a Transaction, provided that ORCC gives the Receiving Party notice thereof three business days prior to such disclosure unless ORCC determines in good faith that it is not reasonably practicable to give such advance notice.
5. Term of Obligations: Return of Confidential Information. This Agreement shall control and govern all Confidential Information disclosed by ORCC to Receiving Party from and after the Effective Date (as defined above) for a period of one (1) year (the “Term”) unless earlier terminated by the Parties in a separate agreement or instrument executed by both Parties. Promptly upon the expiration or termination of this Agreement, or with respect to Technical Information only, upon. ORCC’s reasonable written request, Receiving Party shall return or destroy all written material (if any) containing or reflecting any Confidential Information. Receiving Party shall direct its Representatives to promptly undertake the same measures described in the preceding sentence. In the event Receiving Party elects to destroy Confidential Information, Receiving Party shall provide ORCC with written certification of such destruction executed by Receiving Party’s officer who supervised such destruction. Notwithstanding the foregoing, Receiving Party may retain only such copies of Confidential Information, subject to the terms and conditions hereunder, as may be necessary or required in accordance with Receiving Party’s internal records retention policies and procedures for applicable legal, compliance and regulatory purposes, provided that counsel to Receiving Party may retain copies of Confidential Information of a type set forth in clause (iv) of Section 1(a) hereof as it determines in good faith to be necessary to advise
Receiving Party in connection with any disclosure permitted by Section 4 hereof provided that all such Confidential Information shall remain subject to the provisions of this Agreement for so long as such information is retained notwithstanding any time limitations set forth in this Agreement, Receiving Party’s obligations to protect Confidential Information received during the Term shall survive and continue for 1 year from and after the Effective Date; provided, however, that (i) Receiving Party’s obligations with respect to Confidential Information that constitutes a trade secret under applicable law shall survive and continue for the longer of 1 year or as long as the same remains a trade secret under applicable law and (ii) this Section 5 will not apply to any information that Receiving Party or its Representatives has previously disclosed as permitted by this Agreement.
6. Ownership of Confidential Information. ORCC owns and shall retain all right, title and interest in and to all Confidential Information, regardless of disclosure hereunder. Absolutely no present or future patent, copyright, trademark, trade secret right or other intellectual property right, nor any right, license, title or interest of any kind, is given, granted, transferred or otherwise conveyed by or under this Agreement with respect to any Confidential Information. Receiving Party shall not reverse-engineer, decompile or disassemble any software disclosed under this Agreement and shall not remove, overprint or change any notice, including as to ownership or confidentiality from any originals or copies of Confidential Information.
7. Equitable Relief. Each Party acknowledges and agrees that a breach of any of its obligations hereunder could cause serious and irreparable harm to the other Party that could not adequately be compensated by monetary damages. Accordingly each Party agrees that, in addition to any of remedies to which the other Party may be entitled at law or in equity, each Party shall be entitled to seek an injunction or injunctions to compel specific performance.
8. Definitive Agreement. Nothing contained in this Agreement binds, commits or imposes any obligation upon either Party to pursue or consummate a Transaction, or to enter into any negotiation or agreement regarding a Transaction or any other business relationship. Unless and until the Parties execute and enter into a separate written, agreement that by its terms is expressly intended to be definitive and mutually binding, neither Party shall be under any obligation of any kind with respect to a Transaction, whether by virtue of this Agreement or any written or oral expression with respect to a Transaction by any person.
9. Further Restrictions.
Each Party hereby acknowledges that the stock of ORCC is publicly traded on the NASDAQ Exchange and that federal securities laws prohibit persons in possession of material non-public information and may, depending on the circumstances, prohibit purchasing or selling the stock of ORCC unless such information is publicly disclosed.
10. Non-Solicitation. For one (1) year from the Effective Date, Receiving Party (including its subsidiaries and affiliates) shall not directly or indirectly solicit, hire or engage ORCC’s employees with whom Receiving Party comes into contact, or of whom it becomes aware, in connection with this Agreement or a Transaction and whose annual base salary from ORCC exceeds $150,000, except with ORCC’s prior written consent; provided, however, that the foregoing restriction shall not apply to the hiring of ORCC’s employees who may respond to internet or other advertisements of general circulation and not specifically targeted at such employees or any action in which no Representative of Receiving Party is involved or aware of the existence of this Agreement or discussions of a possible Transaction.
11. Notice. Any notice which may or is required to be given pursuant to this Agreement shall be in writing and shall be sufficiently given or made if (a) emailed or sent by fax, (b) sent via nationally recognized overnight courier, or (c) served personally upon the Party for whom it is intended, and in each event shall be addressed to the President, Chief Executive Officer or General Counsel of the other Party at its notice address provided under its signature below. The date of receipt of any notice under this Agreement shall be as follows: (i) if served personally, on the date of delivery thereof; (ii) if sent by overnight courier, on the next business day after transmission; and (iii) if emailed or sent by fax, on the next business day after dispatch.
12. No Waiver. No failure or delay by a Party in exercising any of its rights shall operate as a waiver thereof, and no single or partial exercise of any right will preclude any other or further exercise thereof.
13. Severability. In the event that any provision or portion of this Agreement is determined to be invalid or unenforceable for any reason, in whole or in part, the remaining provisions of this Agreement shall be unaffected thereby and shall remain in full force and effect to the fullest extent permitted by applicable law.
14. Restrictions on. Export. A Receiving Party will not export, directly or indirectly, any technical data acquired from the Disclosing Party or any product utilizing any such data to any country for which the U.S. government or any agency thereof at the time of export requires an export license or other governmental approval, without-first obtaining (in each instance) such license or approval and only after receiving express authorization from the Disclosing Party.
15. Governing Law: Venue. The validity, construction and performance of this Agreement shall be governed by, and construed and enforced in accordance with, the applicable laws of the State of Delaware without regard to that state’s principles regarding conflict of laws or choice of laws. Each Party hereby consents, further, to the appropriate state or federal district court in Wilmington, Delaware as the proper venue and jurisdiction for the determination of any rights and the resolution of any disputes arising under or as a result of this Agreement. Nothing in this Agreement prohibits a Party from seeking specific performance, injunctive, other equitable relief, and/or damages as a remedy for a breach or threatened breach of this Agreement. The prevailing Party in any arbitration, litigation or other legal proceeding arising out of, or relating to, this Agreement shall be entitled to recover from the other Party (in addition to other relief awarded or granted) its reasonable costs and expenses, including related attorneys fees in the amount determined by the appropriate arbitrator, trial court or appellate court.
16. Entire Agreement: General Terms. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and merges and supersedes all prior and contemporaneous negotiations, discussion, memoranda and agreements pertaining thereto. Nothing in this Agreement is intended to create or shall be construed as creating an employer-employee relationship or any partnership, agency, joint venture or similar relationship with any person. This Agreement shall not be amended, modified or canceled except in a written instrument executed by both Parties. Both Parties actively participated in the preparation and negotiation of this Agreement, and accordingly, this Agreement shall be interpreted and governed without regard as to which Party principally drafted this Agreement. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original instrument.
IN WITNESS WHEREOF, the Parties have entered into this Agreement effective as of the Effective Date defined above:
Online Resources Corporation ACI Worldwide, Inc.
By: /s/ Joseph L. Cowan By: /s/ Dennis P. Byrnes
Joseph L. Cowan Name:Dennis P. Byrnes
President and CEO Title: Executive Vice President
Notice Address: Notice Address:
4795 Meadow Wood Lane 6060 Coventry Drive
Chantilly, VA 20151 Elkhorn, NE 68022
Email: [email protected] Email: [email protected]
Fax: 703.653.2605 Fax: 402.778.2567
JOINDER AGREEMENT
By executing this Joinder Agreement, PricewaterhouseCoopers (the “Joining Party”), hereby irrevocably agrees, effective as of the date hereof, to become a party to the Non-Disclosure and Confidentiality Agreement (the “Confidentiality Agreement”), dated November 15, 2012, between Online Resources Corporation and ACI Worldwide, Inc. (“ACIW”). as if it were the “Receiving Party” (as therein defined). Without limiting the foregoing, the Joining Party hereby acknowledges and agrees that (1) it has been furnished a copy of the Confidentiality Agreement and (2) the Joining Party will observe all obligations of a “Receiving Party” there under. Upon execution and delivery of this Joinder Agreement, the obligations of ACIW and PricewaterhouseCoopers will be several and neither of them will have any liability for breaches thereof by the other or the other’s agents.
Dated: January 4, 2013 PricewaterhouseCoopers
By: /s/ Sanjay Subramanian
Name: Sanjay Subramanian
Title: Principal
Accepted by:
ONLINE RESOURCES CORPORATION
By: /s/ Thomas Ball
Name: Thomas Ball
Title: VP & General Counsel
ACI WORLDWIDE, INC.
By: /s/ Dennis Byrnes
Name: Dennis Byrnes
Title: EVP
| Entailment |
536_nda-17 | 536_nda-17_0 | Q: Receiving Party may create a copy of some Confidential Information in some circumstances.
Text: Exhibit (e)(6)
NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT
This Non-Disclosure and Confidentiality Agreement (this “Agreement”), effective as of November 15, 2012 (“Effective Date”), is made and entered into by and between Online Resources Corporation, a Delaware corporation (“ORCC”), and ACI Worldwide, Inc., a Delaware corporation (“Receiving Party”).
WHEREAS, ORCC and Receiving Party (the “Parties”) wish to explore the possibility of engaging in a potential transaction (a “Transaction”);
WHEREAS, in connection with a possible Transaction, Receiving Party desires to gain access to certain Confidential Information (as such terra is defined below) of ORCC; and
WHEREAS, ORCC is willing to disclose such Confidential Information to Receiving Party upon the terms and subject to the conditions set forth in this Agreement.
NOW THEREFORE, in consideration of the foregoing premises the Parties, intending to be legally bound, agree as follows:
1. Confidential Information: Scope.
(a) As used in this Agreement, “Confidential Information” means and includes any and all confidential and/or proprietary information and data, whether in written, tangible, intangible, digital, electronic or oral form, that is disclosed or made available by or on behalf of ORCC to Receiving Party or its Representatives, including without limitation all record-bearing media containing or disclosing such information, relating to the business or operations of ORCC, or is derived therefrom, and includes (without limitation), any and all: (i) non-public, confidential and/or proprietary information of any third party in the possession of ORCC; (ii) ORCC trade secrets, techniques, discoveries, ideas, inventions, concepts, software in various states of development, designs, drawings, images, specifications, data, diagrams, research, economic and financial analyses, strategic plans and analyses, marketing and advertising techniques, client (or customer) and vendor names, client data, new product launches, price data, sales data, personnel files and materials, and all record-bearing media containing or disclosing such information; (iii) all identifiable and/or sensitive “personal information” (as such term is defined in the federal Gramm-Leach-Bliley Act of 1999, as amended) of end users of ORCC’s services, without specific designation as such (including, but not limited to, names, addresses, social security numbers, account numbers and account balances), and all record-bearing media containing or disclosing such information; and (iv) financial information, including (if provided) financial forecasts, projections or plans. All such information shall be treated as ORCC’s Confidential Information under this Agreement regardless of whether or not it is marked or identified as “Confidential Information.” Except as provided in Section 4, neither Party shall announce, disclose or publicize in any manner this Agreement, the terms, or any discussions or negotiations covered by or relating to this Agreement (including with respect to any Transaction) without the prior written consent of the other Party.
(b) As used in this Agreement, “Confidential Information” specifically excludes any information that: (i) has been or becomes publicly available or is now, or in the future, in the public domain in each case without any breach of this Agreement; (ii) prior to disclosure to Receiving Party hereunder, is within the possession of Receiving Party without any obligation of confidentiality; (iii) subsequent to disclosure hereunder, is lawfully received from a third party having rights therein without restriction of such third party’s or Receiving Party’s right to disseminate such information, and without notice of any restriction against its further disclosure; or (iv) is independently developed by Receiving Party by way of persons or entities which have not used, referenced or had access to (directly or indirectly) Confidential Information.
(c) ALL CONFIDENTIAL INFORMATION PROVIDED BY ORCC UNDER THIS AGREEMENT IS PROVIDED “AS IS”. ORCC MAKES ABSOLUTELY NO REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS, IMPLIED OR OTHERWISE, REGARDING THE ACCURACY, COMPLETENESS OR UTILITY OF ANY CONFIDENTIAL INFORMATION.
2. Use. Restriction of Confidential Information. ORCC will disclose certain Confidential Information to Receiving Party solely for the mutually acknowledged purpose recited above, and Receiving Party shall use such Confidential Information only for such purpose. Except to the extent expressly permitted under this Agreement, Receiving Party shall not disclose, disseminate or cause or permit any disclosure or unauthorized use of any Confidential Information, nor shall Receiving Party make any copies, reproductions, summaries or excerpts of any Confidential Information. Receiving Party shall not use any Confidential Information, including, without limitation, any Technical Information, as a basis for developing, marketing or providing products or services that compete (whether directly or indirectly) with the products or services that ORCC sells, markets or provides to its customers. Receiving Party shall at all times protect Confidential Information, using at minimum those measures that it takes to protect its own Confidential Information of a similar nature (provided that such measures are consistent with at least a reasonable degree of care); provided, however, that nothing herein shall relieve Receiving Party of its liability for unauthorized disclosure or use of Confidential Information. In the event Receiving Party loses or causes an unauthorized disclosure of Confidential Information, it will notify ORCC promptly after becoming aware of such disclosure, and will use commercially reasonable efforts to secure the retrieval and return of such Confidential Information. Any delay or failure by ORCC to enforce its rights in the event of any breach of this Agreement shall not be construed to constitute a waiver or release of its rights with respect to such breach or any subsequent breach.
3. Permitted Disclosure. Receiving Party may only disclose Confidential Information provided to it by ORCC hereunder to Receiving Party’s officers, directors, subsidiaries, affiliates, employees, legal counsel, financial advisors and other duly authorized agents and consultants (its “Representatives”) each of whom Receiving Party reasonably determines need to know such Confidential Information for the purpose of assisting the Receiving Party in its evaluation of a Transaction as set forth in this Agreement; provided, however, that Receiving Party shall, prior to disclosing Confidential Information to one or more Representatives in each instance, inform such Representatives of the confidential nature of the Confidential Information and instruct them to maintain the confidentiality of such Confidential Information in a manner consistent with the terms and conditions of this Agreement.
4. Required Disclosure. Except as provided elsewhere in this Section 4, if a Party determines in good faith that it is required under applicable law or legal process to disclose any Confidential Information of a type referred to in clauses (i), (ii), (iii) or (iv) of Section 1(a) (such Confidential Information “Technical Information”), such Party shall give the other Party prompt notice of such fact so that the other Party may obtain a protective order or any other appropriate remedy concerning any such disclosure and/or waive compliance with the nondisclosure requirements of this Agreement. The disclosing Party will reasonably cooperate with the other Party in connection with the other Party’s efforts to obtain any such order or other remedy. If any such order or other remedy does not fully preclude disclosure, or if the other Party waives such compliance, the disclosing Party may make such disclosure, to the extent that the disclosing Party determines in good faith that such disclosure is required under applicable law or legal process, and the disclosing Party will use its best efforts to have confidential treatment accorded to the disclosed Confidential Information. Notwithstanding the foregoing, the Receiving Party may publicly disclose (i) Confidential Information of the type set forth in clause (iv) of Section 1 (a) above and (ii) the fact that the Parties are or have been discussing a proposed Transaction and/or the terms of such proposed Transaction, in each case, only if and to the extent that the Receiving Party determines in good faith based on an opinion of legal counsel that it is required to do so under applicable law or subpoena or other legal process in connection with a Transaction, provided that the Receiving Party furnishes a copy of the proposed disclosure ORCC not less than five business days prior to such disclosure (unless the disclosing Party determines in good faith that it is not reasonably practicable to give such advance notice) and considers in good faith ORCC’s comments on such proposed disclosure. For the avoidance of doubt, this Agreement is not intended to restrict Receiving Party from making any public or private proposal or offer to acquire ORCC or its securities for all cash consideration, or from making such public disclosure in connection therewith as Receiving Party may determine in good faith based on an opinion of legal counsel to be required in accordance with the preceding sentence. Notwithstanding the foregoing, ORCC may publicly disclose the fact that the Parties are or have been discussing a proposed Transaction and/or the terms of such proposed Transaction only if and to the extent that it determines in good faith that it is required to do so under applicable law or legal process in connection with a Transaction, provided that ORCC gives the Receiving Party notice thereof three business days prior to such disclosure unless ORCC determines in good faith that it is not reasonably practicable to give such advance notice.
5. Term of Obligations: Return of Confidential Information. This Agreement shall control and govern all Confidential Information disclosed by ORCC to Receiving Party from and after the Effective Date (as defined above) for a period of one (1) year (the “Term”) unless earlier terminated by the Parties in a separate agreement or instrument executed by both Parties. Promptly upon the expiration or termination of this Agreement, or with respect to Technical Information only, upon. ORCC’s reasonable written request, Receiving Party shall return or destroy all written material (if any) containing or reflecting any Confidential Information. Receiving Party shall direct its Representatives to promptly undertake the same measures described in the preceding sentence. In the event Receiving Party elects to destroy Confidential Information, Receiving Party shall provide ORCC with written certification of such destruction executed by Receiving Party’s officer who supervised such destruction. Notwithstanding the foregoing, Receiving Party may retain only such copies of Confidential Information, subject to the terms and conditions hereunder, as may be necessary or required in accordance with Receiving Party’s internal records retention policies and procedures for applicable legal, compliance and regulatory purposes, provided that counsel to Receiving Party may retain copies of Confidential Information of a type set forth in clause (iv) of Section 1(a) hereof as it determines in good faith to be necessary to advise
Receiving Party in connection with any disclosure permitted by Section 4 hereof provided that all such Confidential Information shall remain subject to the provisions of this Agreement for so long as such information is retained notwithstanding any time limitations set forth in this Agreement, Receiving Party’s obligations to protect Confidential Information received during the Term shall survive and continue for 1 year from and after the Effective Date; provided, however, that (i) Receiving Party’s obligations with respect to Confidential Information that constitutes a trade secret under applicable law shall survive and continue for the longer of 1 year or as long as the same remains a trade secret under applicable law and (ii) this Section 5 will not apply to any information that Receiving Party or its Representatives has previously disclosed as permitted by this Agreement.
6. Ownership of Confidential Information. ORCC owns and shall retain all right, title and interest in and to all Confidential Information, regardless of disclosure hereunder. Absolutely no present or future patent, copyright, trademark, trade secret right or other intellectual property right, nor any right, license, title or interest of any kind, is given, granted, transferred or otherwise conveyed by or under this Agreement with respect to any Confidential Information. Receiving Party shall not reverse-engineer, decompile or disassemble any software disclosed under this Agreement and shall not remove, overprint or change any notice, including as to ownership or confidentiality from any originals or copies of Confidential Information.
7. Equitable Relief. Each Party acknowledges and agrees that a breach of any of its obligations hereunder could cause serious and irreparable harm to the other Party that could not adequately be compensated by monetary damages. Accordingly each Party agrees that, in addition to any of remedies to which the other Party may be entitled at law or in equity, each Party shall be entitled to seek an injunction or injunctions to compel specific performance.
8. Definitive Agreement. Nothing contained in this Agreement binds, commits or imposes any obligation upon either Party to pursue or consummate a Transaction, or to enter into any negotiation or agreement regarding a Transaction or any other business relationship. Unless and until the Parties execute and enter into a separate written, agreement that by its terms is expressly intended to be definitive and mutually binding, neither Party shall be under any obligation of any kind with respect to a Transaction, whether by virtue of this Agreement or any written or oral expression with respect to a Transaction by any person.
9. Further Restrictions.
Each Party hereby acknowledges that the stock of ORCC is publicly traded on the NASDAQ Exchange and that federal securities laws prohibit persons in possession of material non-public information and may, depending on the circumstances, prohibit purchasing or selling the stock of ORCC unless such information is publicly disclosed.
10. Non-Solicitation. For one (1) year from the Effective Date, Receiving Party (including its subsidiaries and affiliates) shall not directly or indirectly solicit, hire or engage ORCC’s employees with whom Receiving Party comes into contact, or of whom it becomes aware, in connection with this Agreement or a Transaction and whose annual base salary from ORCC exceeds $150,000, except with ORCC’s prior written consent; provided, however, that the foregoing restriction shall not apply to the hiring of ORCC’s employees who may respond to internet or other advertisements of general circulation and not specifically targeted at such employees or any action in which no Representative of Receiving Party is involved or aware of the existence of this Agreement or discussions of a possible Transaction.
11. Notice. Any notice which may or is required to be given pursuant to this Agreement shall be in writing and shall be sufficiently given or made if (a) emailed or sent by fax, (b) sent via nationally recognized overnight courier, or (c) served personally upon the Party for whom it is intended, and in each event shall be addressed to the President, Chief Executive Officer or General Counsel of the other Party at its notice address provided under its signature below. The date of receipt of any notice under this Agreement shall be as follows: (i) if served personally, on the date of delivery thereof; (ii) if sent by overnight courier, on the next business day after transmission; and (iii) if emailed or sent by fax, on the next business day after dispatch.
12. No Waiver. No failure or delay by a Party in exercising any of its rights shall operate as a waiver thereof, and no single or partial exercise of any right will preclude any other or further exercise thereof.
13. Severability. In the event that any provision or portion of this Agreement is determined to be invalid or unenforceable for any reason, in whole or in part, the remaining provisions of this Agreement shall be unaffected thereby and shall remain in full force and effect to the fullest extent permitted by applicable law.
14. Restrictions on. Export. A Receiving Party will not export, directly or indirectly, any technical data acquired from the Disclosing Party or any product utilizing any such data to any country for which the U.S. government or any agency thereof at the time of export requires an export license or other governmental approval, without-first obtaining (in each instance) such license or approval and only after receiving express authorization from the Disclosing Party.
15. Governing Law: Venue. The validity, construction and performance of this Agreement shall be governed by, and construed and enforced in accordance with, the applicable laws of the State of Delaware without regard to that state’s principles regarding conflict of laws or choice of laws. Each Party hereby consents, further, to the appropriate state or federal district court in Wilmington, Delaware as the proper venue and jurisdiction for the determination of any rights and the resolution of any disputes arising under or as a result of this Agreement. Nothing in this Agreement prohibits a Party from seeking specific performance, injunctive, other equitable relief, and/or damages as a remedy for a breach or threatened breach of this Agreement. The prevailing Party in any arbitration, litigation or other legal proceeding arising out of, or relating to, this Agreement shall be entitled to recover from the other Party (in addition to other relief awarded or granted) its reasonable costs and expenses, including related attorneys fees in the amount determined by the appropriate arbitrator, trial court or appellate court.
16. Entire Agreement: General Terms. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and merges and supersedes all prior and contemporaneous negotiations, discussion, memoranda and agreements pertaining thereto. Nothing in this Agreement is intended to create or shall be construed as creating an employer-employee relationship or any partnership, agency, joint venture or similar relationship with any person. This Agreement shall not be amended, modified or canceled except in a written instrument executed by both Parties. Both Parties actively participated in the preparation and negotiation of this Agreement, and accordingly, this Agreement shall be interpreted and governed without regard as to which Party principally drafted this Agreement. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original instrument.
IN WITNESS WHEREOF, the Parties have entered into this Agreement effective as of the Effective Date defined above:
Online Resources Corporation ACI Worldwide, Inc.
By: /s/ Joseph L. Cowan By: /s/ Dennis P. Byrnes
Joseph L. Cowan Name:Dennis P. Byrnes
President and CEO Title: Executive Vice President
Notice Address: Notice Address:
4795 Meadow Wood Lane 6060 Coventry Drive
Chantilly, VA 20151 Elkhorn, NE 68022
Email: [email protected] Email: [email protected]
Fax: 703.653.2605 Fax: 402.778.2567
JOINDER AGREEMENT
By executing this Joinder Agreement, PricewaterhouseCoopers (the “Joining Party”), hereby irrevocably agrees, effective as of the date hereof, to become a party to the Non-Disclosure and Confidentiality Agreement (the “Confidentiality Agreement”), dated November 15, 2012, between Online Resources Corporation and ACI Worldwide, Inc. (“ACIW”). as if it were the “Receiving Party” (as therein defined). Without limiting the foregoing, the Joining Party hereby acknowledges and agrees that (1) it has been furnished a copy of the Confidentiality Agreement and (2) the Joining Party will observe all obligations of a “Receiving Party” there under. Upon execution and delivery of this Joinder Agreement, the obligations of ACIW and PricewaterhouseCoopers will be several and neither of them will have any liability for breaches thereof by the other or the other’s agents.
Dated: January 4, 2013 PricewaterhouseCoopers
By: /s/ Sanjay Subramanian
Name: Sanjay Subramanian
Title: Principal
Accepted by:
ONLINE RESOURCES CORPORATION
By: /s/ Thomas Ball
Name: Thomas Ball
Title: VP & General Counsel
ACI WORLDWIDE, INC.
By: /s/ Dennis Byrnes
Name: Dennis Byrnes
Title: EVP
| Entailment |
536_nda-8 | 536_nda-8_0 | Q: Receiving Party shall notify Disclosing Party in case Receiving Party is required by law, regulation or judicial process to disclose any Confidential Information.
Text: Exhibit (e)(6)
NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT
This Non-Disclosure and Confidentiality Agreement (this “Agreement”), effective as of November 15, 2012 (“Effective Date”), is made and entered into by and between Online Resources Corporation, a Delaware corporation (“ORCC”), and ACI Worldwide, Inc., a Delaware corporation (“Receiving Party”).
WHEREAS, ORCC and Receiving Party (the “Parties”) wish to explore the possibility of engaging in a potential transaction (a “Transaction”);
WHEREAS, in connection with a possible Transaction, Receiving Party desires to gain access to certain Confidential Information (as such terra is defined below) of ORCC; and
WHEREAS, ORCC is willing to disclose such Confidential Information to Receiving Party upon the terms and subject to the conditions set forth in this Agreement.
NOW THEREFORE, in consideration of the foregoing premises the Parties, intending to be legally bound, agree as follows:
1. Confidential Information: Scope.
(a) As used in this Agreement, “Confidential Information” means and includes any and all confidential and/or proprietary information and data, whether in written, tangible, intangible, digital, electronic or oral form, that is disclosed or made available by or on behalf of ORCC to Receiving Party or its Representatives, including without limitation all record-bearing media containing or disclosing such information, relating to the business or operations of ORCC, or is derived therefrom, and includes (without limitation), any and all: (i) non-public, confidential and/or proprietary information of any third party in the possession of ORCC; (ii) ORCC trade secrets, techniques, discoveries, ideas, inventions, concepts, software in various states of development, designs, drawings, images, specifications, data, diagrams, research, economic and financial analyses, strategic plans and analyses, marketing and advertising techniques, client (or customer) and vendor names, client data, new product launches, price data, sales data, personnel files and materials, and all record-bearing media containing or disclosing such information; (iii) all identifiable and/or sensitive “personal information” (as such term is defined in the federal Gramm-Leach-Bliley Act of 1999, as amended) of end users of ORCC’s services, without specific designation as such (including, but not limited to, names, addresses, social security numbers, account numbers and account balances), and all record-bearing media containing or disclosing such information; and (iv) financial information, including (if provided) financial forecasts, projections or plans. All such information shall be treated as ORCC’s Confidential Information under this Agreement regardless of whether or not it is marked or identified as “Confidential Information.” Except as provided in Section 4, neither Party shall announce, disclose or publicize in any manner this Agreement, the terms, or any discussions or negotiations covered by or relating to this Agreement (including with respect to any Transaction) without the prior written consent of the other Party.
(b) As used in this Agreement, “Confidential Information” specifically excludes any information that: (i) has been or becomes publicly available or is now, or in the future, in the public domain in each case without any breach of this Agreement; (ii) prior to disclosure to Receiving Party hereunder, is within the possession of Receiving Party without any obligation of confidentiality; (iii) subsequent to disclosure hereunder, is lawfully received from a third party having rights therein without restriction of such third party’s or Receiving Party’s right to disseminate such information, and without notice of any restriction against its further disclosure; or (iv) is independently developed by Receiving Party by way of persons or entities which have not used, referenced or had access to (directly or indirectly) Confidential Information.
(c) ALL CONFIDENTIAL INFORMATION PROVIDED BY ORCC UNDER THIS AGREEMENT IS PROVIDED “AS IS”. ORCC MAKES ABSOLUTELY NO REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS, IMPLIED OR OTHERWISE, REGARDING THE ACCURACY, COMPLETENESS OR UTILITY OF ANY CONFIDENTIAL INFORMATION.
2. Use. Restriction of Confidential Information. ORCC will disclose certain Confidential Information to Receiving Party solely for the mutually acknowledged purpose recited above, and Receiving Party shall use such Confidential Information only for such purpose. Except to the extent expressly permitted under this Agreement, Receiving Party shall not disclose, disseminate or cause or permit any disclosure or unauthorized use of any Confidential Information, nor shall Receiving Party make any copies, reproductions, summaries or excerpts of any Confidential Information. Receiving Party shall not use any Confidential Information, including, without limitation, any Technical Information, as a basis for developing, marketing or providing products or services that compete (whether directly or indirectly) with the products or services that ORCC sells, markets or provides to its customers. Receiving Party shall at all times protect Confidential Information, using at minimum those measures that it takes to protect its own Confidential Information of a similar nature (provided that such measures are consistent with at least a reasonable degree of care); provided, however, that nothing herein shall relieve Receiving Party of its liability for unauthorized disclosure or use of Confidential Information. In the event Receiving Party loses or causes an unauthorized disclosure of Confidential Information, it will notify ORCC promptly after becoming aware of such disclosure, and will use commercially reasonable efforts to secure the retrieval and return of such Confidential Information. Any delay or failure by ORCC to enforce its rights in the event of any breach of this Agreement shall not be construed to constitute a waiver or release of its rights with respect to such breach or any subsequent breach.
3. Permitted Disclosure. Receiving Party may only disclose Confidential Information provided to it by ORCC hereunder to Receiving Party’s officers, directors, subsidiaries, affiliates, employees, legal counsel, financial advisors and other duly authorized agents and consultants (its “Representatives”) each of whom Receiving Party reasonably determines need to know such Confidential Information for the purpose of assisting the Receiving Party in its evaluation of a Transaction as set forth in this Agreement; provided, however, that Receiving Party shall, prior to disclosing Confidential Information to one or more Representatives in each instance, inform such Representatives of the confidential nature of the Confidential Information and instruct them to maintain the confidentiality of such Confidential Information in a manner consistent with the terms and conditions of this Agreement.
4. Required Disclosure. Except as provided elsewhere in this Section 4, if a Party determines in good faith that it is required under applicable law or legal process to disclose any Confidential Information of a type referred to in clauses (i), (ii), (iii) or (iv) of Section 1(a) (such Confidential Information “Technical Information”), such Party shall give the other Party prompt notice of such fact so that the other Party may obtain a protective order or any other appropriate remedy concerning any such disclosure and/or waive compliance with the nondisclosure requirements of this Agreement. The disclosing Party will reasonably cooperate with the other Party in connection with the other Party’s efforts to obtain any such order or other remedy. If any such order or other remedy does not fully preclude disclosure, or if the other Party waives such compliance, the disclosing Party may make such disclosure, to the extent that the disclosing Party determines in good faith that such disclosure is required under applicable law or legal process, and the disclosing Party will use its best efforts to have confidential treatment accorded to the disclosed Confidential Information. Notwithstanding the foregoing, the Receiving Party may publicly disclose (i) Confidential Information of the type set forth in clause (iv) of Section 1 (a) above and (ii) the fact that the Parties are or have been discussing a proposed Transaction and/or the terms of such proposed Transaction, in each case, only if and to the extent that the Receiving Party determines in good faith based on an opinion of legal counsel that it is required to do so under applicable law or subpoena or other legal process in connection with a Transaction, provided that the Receiving Party furnishes a copy of the proposed disclosure ORCC not less than five business days prior to such disclosure (unless the disclosing Party determines in good faith that it is not reasonably practicable to give such advance notice) and considers in good faith ORCC’s comments on such proposed disclosure. For the avoidance of doubt, this Agreement is not intended to restrict Receiving Party from making any public or private proposal or offer to acquire ORCC or its securities for all cash consideration, or from making such public disclosure in connection therewith as Receiving Party may determine in good faith based on an opinion of legal counsel to be required in accordance with the preceding sentence. Notwithstanding the foregoing, ORCC may publicly disclose the fact that the Parties are or have been discussing a proposed Transaction and/or the terms of such proposed Transaction only if and to the extent that it determines in good faith that it is required to do so under applicable law or legal process in connection with a Transaction, provided that ORCC gives the Receiving Party notice thereof three business days prior to such disclosure unless ORCC determines in good faith that it is not reasonably practicable to give such advance notice.
5. Term of Obligations: Return of Confidential Information. This Agreement shall control and govern all Confidential Information disclosed by ORCC to Receiving Party from and after the Effective Date (as defined above) for a period of one (1) year (the “Term”) unless earlier terminated by the Parties in a separate agreement or instrument executed by both Parties. Promptly upon the expiration or termination of this Agreement, or with respect to Technical Information only, upon. ORCC’s reasonable written request, Receiving Party shall return or destroy all written material (if any) containing or reflecting any Confidential Information. Receiving Party shall direct its Representatives to promptly undertake the same measures described in the preceding sentence. In the event Receiving Party elects to destroy Confidential Information, Receiving Party shall provide ORCC with written certification of such destruction executed by Receiving Party’s officer who supervised such destruction. Notwithstanding the foregoing, Receiving Party may retain only such copies of Confidential Information, subject to the terms and conditions hereunder, as may be necessary or required in accordance with Receiving Party’s internal records retention policies and procedures for applicable legal, compliance and regulatory purposes, provided that counsel to Receiving Party may retain copies of Confidential Information of a type set forth in clause (iv) of Section 1(a) hereof as it determines in good faith to be necessary to advise
Receiving Party in connection with any disclosure permitted by Section 4 hereof provided that all such Confidential Information shall remain subject to the provisions of this Agreement for so long as such information is retained notwithstanding any time limitations set forth in this Agreement, Receiving Party’s obligations to protect Confidential Information received during the Term shall survive and continue for 1 year from and after the Effective Date; provided, however, that (i) Receiving Party’s obligations with respect to Confidential Information that constitutes a trade secret under applicable law shall survive and continue for the longer of 1 year or as long as the same remains a trade secret under applicable law and (ii) this Section 5 will not apply to any information that Receiving Party or its Representatives has previously disclosed as permitted by this Agreement.
6. Ownership of Confidential Information. ORCC owns and shall retain all right, title and interest in and to all Confidential Information, regardless of disclosure hereunder. Absolutely no present or future patent, copyright, trademark, trade secret right or other intellectual property right, nor any right, license, title or interest of any kind, is given, granted, transferred or otherwise conveyed by or under this Agreement with respect to any Confidential Information. Receiving Party shall not reverse-engineer, decompile or disassemble any software disclosed under this Agreement and shall not remove, overprint or change any notice, including as to ownership or confidentiality from any originals or copies of Confidential Information.
7. Equitable Relief. Each Party acknowledges and agrees that a breach of any of its obligations hereunder could cause serious and irreparable harm to the other Party that could not adequately be compensated by monetary damages. Accordingly each Party agrees that, in addition to any of remedies to which the other Party may be entitled at law or in equity, each Party shall be entitled to seek an injunction or injunctions to compel specific performance.
8. Definitive Agreement. Nothing contained in this Agreement binds, commits or imposes any obligation upon either Party to pursue or consummate a Transaction, or to enter into any negotiation or agreement regarding a Transaction or any other business relationship. Unless and until the Parties execute and enter into a separate written, agreement that by its terms is expressly intended to be definitive and mutually binding, neither Party shall be under any obligation of any kind with respect to a Transaction, whether by virtue of this Agreement or any written or oral expression with respect to a Transaction by any person.
9. Further Restrictions.
Each Party hereby acknowledges that the stock of ORCC is publicly traded on the NASDAQ Exchange and that federal securities laws prohibit persons in possession of material non-public information and may, depending on the circumstances, prohibit purchasing or selling the stock of ORCC unless such information is publicly disclosed.
10. Non-Solicitation. For one (1) year from the Effective Date, Receiving Party (including its subsidiaries and affiliates) shall not directly or indirectly solicit, hire or engage ORCC’s employees with whom Receiving Party comes into contact, or of whom it becomes aware, in connection with this Agreement or a Transaction and whose annual base salary from ORCC exceeds $150,000, except with ORCC’s prior written consent; provided, however, that the foregoing restriction shall not apply to the hiring of ORCC’s employees who may respond to internet or other advertisements of general circulation and not specifically targeted at such employees or any action in which no Representative of Receiving Party is involved or aware of the existence of this Agreement or discussions of a possible Transaction.
11. Notice. Any notice which may or is required to be given pursuant to this Agreement shall be in writing and shall be sufficiently given or made if (a) emailed or sent by fax, (b) sent via nationally recognized overnight courier, or (c) served personally upon the Party for whom it is intended, and in each event shall be addressed to the President, Chief Executive Officer or General Counsel of the other Party at its notice address provided under its signature below. The date of receipt of any notice under this Agreement shall be as follows: (i) if served personally, on the date of delivery thereof; (ii) if sent by overnight courier, on the next business day after transmission; and (iii) if emailed or sent by fax, on the next business day after dispatch.
12. No Waiver. No failure or delay by a Party in exercising any of its rights shall operate as a waiver thereof, and no single or partial exercise of any right will preclude any other or further exercise thereof.
13. Severability. In the event that any provision or portion of this Agreement is determined to be invalid or unenforceable for any reason, in whole or in part, the remaining provisions of this Agreement shall be unaffected thereby and shall remain in full force and effect to the fullest extent permitted by applicable law.
14. Restrictions on. Export. A Receiving Party will not export, directly or indirectly, any technical data acquired from the Disclosing Party or any product utilizing any such data to any country for which the U.S. government or any agency thereof at the time of export requires an export license or other governmental approval, without-first obtaining (in each instance) such license or approval and only after receiving express authorization from the Disclosing Party.
15. Governing Law: Venue. The validity, construction and performance of this Agreement shall be governed by, and construed and enforced in accordance with, the applicable laws of the State of Delaware without regard to that state’s principles regarding conflict of laws or choice of laws. Each Party hereby consents, further, to the appropriate state or federal district court in Wilmington, Delaware as the proper venue and jurisdiction for the determination of any rights and the resolution of any disputes arising under or as a result of this Agreement. Nothing in this Agreement prohibits a Party from seeking specific performance, injunctive, other equitable relief, and/or damages as a remedy for a breach or threatened breach of this Agreement. The prevailing Party in any arbitration, litigation or other legal proceeding arising out of, or relating to, this Agreement shall be entitled to recover from the other Party (in addition to other relief awarded or granted) its reasonable costs and expenses, including related attorneys fees in the amount determined by the appropriate arbitrator, trial court or appellate court.
16. Entire Agreement: General Terms. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and merges and supersedes all prior and contemporaneous negotiations, discussion, memoranda and agreements pertaining thereto. Nothing in this Agreement is intended to create or shall be construed as creating an employer-employee relationship or any partnership, agency, joint venture or similar relationship with any person. This Agreement shall not be amended, modified or canceled except in a written instrument executed by both Parties. Both Parties actively participated in the preparation and negotiation of this Agreement, and accordingly, this Agreement shall be interpreted and governed without regard as to which Party principally drafted this Agreement. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original instrument.
IN WITNESS WHEREOF, the Parties have entered into this Agreement effective as of the Effective Date defined above:
Online Resources Corporation ACI Worldwide, Inc.
By: /s/ Joseph L. Cowan By: /s/ Dennis P. Byrnes
Joseph L. Cowan Name:Dennis P. Byrnes
President and CEO Title: Executive Vice President
Notice Address: Notice Address:
4795 Meadow Wood Lane 6060 Coventry Drive
Chantilly, VA 20151 Elkhorn, NE 68022
Email: [email protected] Email: [email protected]
Fax: 703.653.2605 Fax: 402.778.2567
JOINDER AGREEMENT
By executing this Joinder Agreement, PricewaterhouseCoopers (the “Joining Party”), hereby irrevocably agrees, effective as of the date hereof, to become a party to the Non-Disclosure and Confidentiality Agreement (the “Confidentiality Agreement”), dated November 15, 2012, between Online Resources Corporation and ACI Worldwide, Inc. (“ACIW”). as if it were the “Receiving Party” (as therein defined). Without limiting the foregoing, the Joining Party hereby acknowledges and agrees that (1) it has been furnished a copy of the Confidentiality Agreement and (2) the Joining Party will observe all obligations of a “Receiving Party” there under. Upon execution and delivery of this Joinder Agreement, the obligations of ACIW and PricewaterhouseCoopers will be several and neither of them will have any liability for breaches thereof by the other or the other’s agents.
Dated: January 4, 2013 PricewaterhouseCoopers
By: /s/ Sanjay Subramanian
Name: Sanjay Subramanian
Title: Principal
Accepted by:
ONLINE RESOURCES CORPORATION
By: /s/ Thomas Ball
Name: Thomas Ball
Title: VP & General Counsel
ACI WORLDWIDE, INC.
By: /s/ Dennis Byrnes
Name: Dennis Byrnes
Title: EVP
| Entailment |
536_nda-13 | 536_nda-13_0 | Q: Receiving Party may acquire information similar to Confidential Information from a third party.
Text: Exhibit (e)(6)
NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT
This Non-Disclosure and Confidentiality Agreement (this “Agreement”), effective as of November 15, 2012 (“Effective Date”), is made and entered into by and between Online Resources Corporation, a Delaware corporation (“ORCC”), and ACI Worldwide, Inc., a Delaware corporation (“Receiving Party”).
WHEREAS, ORCC and Receiving Party (the “Parties”) wish to explore the possibility of engaging in a potential transaction (a “Transaction”);
WHEREAS, in connection with a possible Transaction, Receiving Party desires to gain access to certain Confidential Information (as such terra is defined below) of ORCC; and
WHEREAS, ORCC is willing to disclose such Confidential Information to Receiving Party upon the terms and subject to the conditions set forth in this Agreement.
NOW THEREFORE, in consideration of the foregoing premises the Parties, intending to be legally bound, agree as follows:
1. Confidential Information: Scope.
(a) As used in this Agreement, “Confidential Information” means and includes any and all confidential and/or proprietary information and data, whether in written, tangible, intangible, digital, electronic or oral form, that is disclosed or made available by or on behalf of ORCC to Receiving Party or its Representatives, including without limitation all record-bearing media containing or disclosing such information, relating to the business or operations of ORCC, or is derived therefrom, and includes (without limitation), any and all: (i) non-public, confidential and/or proprietary information of any third party in the possession of ORCC; (ii) ORCC trade secrets, techniques, discoveries, ideas, inventions, concepts, software in various states of development, designs, drawings, images, specifications, data, diagrams, research, economic and financial analyses, strategic plans and analyses, marketing and advertising techniques, client (or customer) and vendor names, client data, new product launches, price data, sales data, personnel files and materials, and all record-bearing media containing or disclosing such information; (iii) all identifiable and/or sensitive “personal information” (as such term is defined in the federal Gramm-Leach-Bliley Act of 1999, as amended) of end users of ORCC’s services, without specific designation as such (including, but not limited to, names, addresses, social security numbers, account numbers and account balances), and all record-bearing media containing or disclosing such information; and (iv) financial information, including (if provided) financial forecasts, projections or plans. All such information shall be treated as ORCC’s Confidential Information under this Agreement regardless of whether or not it is marked or identified as “Confidential Information.” Except as provided in Section 4, neither Party shall announce, disclose or publicize in any manner this Agreement, the terms, or any discussions or negotiations covered by or relating to this Agreement (including with respect to any Transaction) without the prior written consent of the other Party.
(b) As used in this Agreement, “Confidential Information” specifically excludes any information that: (i) has been or becomes publicly available or is now, or in the future, in the public domain in each case without any breach of this Agreement; (ii) prior to disclosure to Receiving Party hereunder, is within the possession of Receiving Party without any obligation of confidentiality; (iii) subsequent to disclosure hereunder, is lawfully received from a third party having rights therein without restriction of such third party’s or Receiving Party’s right to disseminate such information, and without notice of any restriction against its further disclosure; or (iv) is independently developed by Receiving Party by way of persons or entities which have not used, referenced or had access to (directly or indirectly) Confidential Information.
(c) ALL CONFIDENTIAL INFORMATION PROVIDED BY ORCC UNDER THIS AGREEMENT IS PROVIDED “AS IS”. ORCC MAKES ABSOLUTELY NO REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS, IMPLIED OR OTHERWISE, REGARDING THE ACCURACY, COMPLETENESS OR UTILITY OF ANY CONFIDENTIAL INFORMATION.
2. Use. Restriction of Confidential Information. ORCC will disclose certain Confidential Information to Receiving Party solely for the mutually acknowledged purpose recited above, and Receiving Party shall use such Confidential Information only for such purpose. Except to the extent expressly permitted under this Agreement, Receiving Party shall not disclose, disseminate or cause or permit any disclosure or unauthorized use of any Confidential Information, nor shall Receiving Party make any copies, reproductions, summaries or excerpts of any Confidential Information. Receiving Party shall not use any Confidential Information, including, without limitation, any Technical Information, as a basis for developing, marketing or providing products or services that compete (whether directly or indirectly) with the products or services that ORCC sells, markets or provides to its customers. Receiving Party shall at all times protect Confidential Information, using at minimum those measures that it takes to protect its own Confidential Information of a similar nature (provided that such measures are consistent with at least a reasonable degree of care); provided, however, that nothing herein shall relieve Receiving Party of its liability for unauthorized disclosure or use of Confidential Information. In the event Receiving Party loses or causes an unauthorized disclosure of Confidential Information, it will notify ORCC promptly after becoming aware of such disclosure, and will use commercially reasonable efforts to secure the retrieval and return of such Confidential Information. Any delay or failure by ORCC to enforce its rights in the event of any breach of this Agreement shall not be construed to constitute a waiver or release of its rights with respect to such breach or any subsequent breach.
3. Permitted Disclosure. Receiving Party may only disclose Confidential Information provided to it by ORCC hereunder to Receiving Party’s officers, directors, subsidiaries, affiliates, employees, legal counsel, financial advisors and other duly authorized agents and consultants (its “Representatives”) each of whom Receiving Party reasonably determines need to know such Confidential Information for the purpose of assisting the Receiving Party in its evaluation of a Transaction as set forth in this Agreement; provided, however, that Receiving Party shall, prior to disclosing Confidential Information to one or more Representatives in each instance, inform such Representatives of the confidential nature of the Confidential Information and instruct them to maintain the confidentiality of such Confidential Information in a manner consistent with the terms and conditions of this Agreement.
4. Required Disclosure. Except as provided elsewhere in this Section 4, if a Party determines in good faith that it is required under applicable law or legal process to disclose any Confidential Information of a type referred to in clauses (i), (ii), (iii) or (iv) of Section 1(a) (such Confidential Information “Technical Information”), such Party shall give the other Party prompt notice of such fact so that the other Party may obtain a protective order or any other appropriate remedy concerning any such disclosure and/or waive compliance with the nondisclosure requirements of this Agreement. The disclosing Party will reasonably cooperate with the other Party in connection with the other Party’s efforts to obtain any such order or other remedy. If any such order or other remedy does not fully preclude disclosure, or if the other Party waives such compliance, the disclosing Party may make such disclosure, to the extent that the disclosing Party determines in good faith that such disclosure is required under applicable law or legal process, and the disclosing Party will use its best efforts to have confidential treatment accorded to the disclosed Confidential Information. Notwithstanding the foregoing, the Receiving Party may publicly disclose (i) Confidential Information of the type set forth in clause (iv) of Section 1 (a) above and (ii) the fact that the Parties are or have been discussing a proposed Transaction and/or the terms of such proposed Transaction, in each case, only if and to the extent that the Receiving Party determines in good faith based on an opinion of legal counsel that it is required to do so under applicable law or subpoena or other legal process in connection with a Transaction, provided that the Receiving Party furnishes a copy of the proposed disclosure ORCC not less than five business days prior to such disclosure (unless the disclosing Party determines in good faith that it is not reasonably practicable to give such advance notice) and considers in good faith ORCC’s comments on such proposed disclosure. For the avoidance of doubt, this Agreement is not intended to restrict Receiving Party from making any public or private proposal or offer to acquire ORCC or its securities for all cash consideration, or from making such public disclosure in connection therewith as Receiving Party may determine in good faith based on an opinion of legal counsel to be required in accordance with the preceding sentence. Notwithstanding the foregoing, ORCC may publicly disclose the fact that the Parties are or have been discussing a proposed Transaction and/or the terms of such proposed Transaction only if and to the extent that it determines in good faith that it is required to do so under applicable law or legal process in connection with a Transaction, provided that ORCC gives the Receiving Party notice thereof three business days prior to such disclosure unless ORCC determines in good faith that it is not reasonably practicable to give such advance notice.
5. Term of Obligations: Return of Confidential Information. This Agreement shall control and govern all Confidential Information disclosed by ORCC to Receiving Party from and after the Effective Date (as defined above) for a period of one (1) year (the “Term”) unless earlier terminated by the Parties in a separate agreement or instrument executed by both Parties. Promptly upon the expiration or termination of this Agreement, or with respect to Technical Information only, upon. ORCC’s reasonable written request, Receiving Party shall return or destroy all written material (if any) containing or reflecting any Confidential Information. Receiving Party shall direct its Representatives to promptly undertake the same measures described in the preceding sentence. In the event Receiving Party elects to destroy Confidential Information, Receiving Party shall provide ORCC with written certification of such destruction executed by Receiving Party’s officer who supervised such destruction. Notwithstanding the foregoing, Receiving Party may retain only such copies of Confidential Information, subject to the terms and conditions hereunder, as may be necessary or required in accordance with Receiving Party’s internal records retention policies and procedures for applicable legal, compliance and regulatory purposes, provided that counsel to Receiving Party may retain copies of Confidential Information of a type set forth in clause (iv) of Section 1(a) hereof as it determines in good faith to be necessary to advise
Receiving Party in connection with any disclosure permitted by Section 4 hereof provided that all such Confidential Information shall remain subject to the provisions of this Agreement for so long as such information is retained notwithstanding any time limitations set forth in this Agreement, Receiving Party’s obligations to protect Confidential Information received during the Term shall survive and continue for 1 year from and after the Effective Date; provided, however, that (i) Receiving Party’s obligations with respect to Confidential Information that constitutes a trade secret under applicable law shall survive and continue for the longer of 1 year or as long as the same remains a trade secret under applicable law and (ii) this Section 5 will not apply to any information that Receiving Party or its Representatives has previously disclosed as permitted by this Agreement.
6. Ownership of Confidential Information. ORCC owns and shall retain all right, title and interest in and to all Confidential Information, regardless of disclosure hereunder. Absolutely no present or future patent, copyright, trademark, trade secret right or other intellectual property right, nor any right, license, title or interest of any kind, is given, granted, transferred or otherwise conveyed by or under this Agreement with respect to any Confidential Information. Receiving Party shall not reverse-engineer, decompile or disassemble any software disclosed under this Agreement and shall not remove, overprint or change any notice, including as to ownership or confidentiality from any originals or copies of Confidential Information.
7. Equitable Relief. Each Party acknowledges and agrees that a breach of any of its obligations hereunder could cause serious and irreparable harm to the other Party that could not adequately be compensated by monetary damages. Accordingly each Party agrees that, in addition to any of remedies to which the other Party may be entitled at law or in equity, each Party shall be entitled to seek an injunction or injunctions to compel specific performance.
8. Definitive Agreement. Nothing contained in this Agreement binds, commits or imposes any obligation upon either Party to pursue or consummate a Transaction, or to enter into any negotiation or agreement regarding a Transaction or any other business relationship. Unless and until the Parties execute and enter into a separate written, agreement that by its terms is expressly intended to be definitive and mutually binding, neither Party shall be under any obligation of any kind with respect to a Transaction, whether by virtue of this Agreement or any written or oral expression with respect to a Transaction by any person.
9. Further Restrictions.
Each Party hereby acknowledges that the stock of ORCC is publicly traded on the NASDAQ Exchange and that federal securities laws prohibit persons in possession of material non-public information and may, depending on the circumstances, prohibit purchasing or selling the stock of ORCC unless such information is publicly disclosed.
10. Non-Solicitation. For one (1) year from the Effective Date, Receiving Party (including its subsidiaries and affiliates) shall not directly or indirectly solicit, hire or engage ORCC’s employees with whom Receiving Party comes into contact, or of whom it becomes aware, in connection with this Agreement or a Transaction and whose annual base salary from ORCC exceeds $150,000, except with ORCC’s prior written consent; provided, however, that the foregoing restriction shall not apply to the hiring of ORCC’s employees who may respond to internet or other advertisements of general circulation and not specifically targeted at such employees or any action in which no Representative of Receiving Party is involved or aware of the existence of this Agreement or discussions of a possible Transaction.
11. Notice. Any notice which may or is required to be given pursuant to this Agreement shall be in writing and shall be sufficiently given or made if (a) emailed or sent by fax, (b) sent via nationally recognized overnight courier, or (c) served personally upon the Party for whom it is intended, and in each event shall be addressed to the President, Chief Executive Officer or General Counsel of the other Party at its notice address provided under its signature below. The date of receipt of any notice under this Agreement shall be as follows: (i) if served personally, on the date of delivery thereof; (ii) if sent by overnight courier, on the next business day after transmission; and (iii) if emailed or sent by fax, on the next business day after dispatch.
12. No Waiver. No failure or delay by a Party in exercising any of its rights shall operate as a waiver thereof, and no single or partial exercise of any right will preclude any other or further exercise thereof.
13. Severability. In the event that any provision or portion of this Agreement is determined to be invalid or unenforceable for any reason, in whole or in part, the remaining provisions of this Agreement shall be unaffected thereby and shall remain in full force and effect to the fullest extent permitted by applicable law.
14. Restrictions on. Export. A Receiving Party will not export, directly or indirectly, any technical data acquired from the Disclosing Party or any product utilizing any such data to any country for which the U.S. government or any agency thereof at the time of export requires an export license or other governmental approval, without-first obtaining (in each instance) such license or approval and only after receiving express authorization from the Disclosing Party.
15. Governing Law: Venue. The validity, construction and performance of this Agreement shall be governed by, and construed and enforced in accordance with, the applicable laws of the State of Delaware without regard to that state’s principles regarding conflict of laws or choice of laws. Each Party hereby consents, further, to the appropriate state or federal district court in Wilmington, Delaware as the proper venue and jurisdiction for the determination of any rights and the resolution of any disputes arising under or as a result of this Agreement. Nothing in this Agreement prohibits a Party from seeking specific performance, injunctive, other equitable relief, and/or damages as a remedy for a breach or threatened breach of this Agreement. The prevailing Party in any arbitration, litigation or other legal proceeding arising out of, or relating to, this Agreement shall be entitled to recover from the other Party (in addition to other relief awarded or granted) its reasonable costs and expenses, including related attorneys fees in the amount determined by the appropriate arbitrator, trial court or appellate court.
16. Entire Agreement: General Terms. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and merges and supersedes all prior and contemporaneous negotiations, discussion, memoranda and agreements pertaining thereto. Nothing in this Agreement is intended to create or shall be construed as creating an employer-employee relationship or any partnership, agency, joint venture or similar relationship with any person. This Agreement shall not be amended, modified or canceled except in a written instrument executed by both Parties. Both Parties actively participated in the preparation and negotiation of this Agreement, and accordingly, this Agreement shall be interpreted and governed without regard as to which Party principally drafted this Agreement. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original instrument.
IN WITNESS WHEREOF, the Parties have entered into this Agreement effective as of the Effective Date defined above:
Online Resources Corporation ACI Worldwide, Inc.
By: /s/ Joseph L. Cowan By: /s/ Dennis P. Byrnes
Joseph L. Cowan Name:Dennis P. Byrnes
President and CEO Title: Executive Vice President
Notice Address: Notice Address:
4795 Meadow Wood Lane 6060 Coventry Drive
Chantilly, VA 20151 Elkhorn, NE 68022
Email: [email protected] Email: [email protected]
Fax: 703.653.2605 Fax: 402.778.2567
JOINDER AGREEMENT
By executing this Joinder Agreement, PricewaterhouseCoopers (the “Joining Party”), hereby irrevocably agrees, effective as of the date hereof, to become a party to the Non-Disclosure and Confidentiality Agreement (the “Confidentiality Agreement”), dated November 15, 2012, between Online Resources Corporation and ACI Worldwide, Inc. (“ACIW”). as if it were the “Receiving Party” (as therein defined). Without limiting the foregoing, the Joining Party hereby acknowledges and agrees that (1) it has been furnished a copy of the Confidentiality Agreement and (2) the Joining Party will observe all obligations of a “Receiving Party” there under. Upon execution and delivery of this Joinder Agreement, the obligations of ACIW and PricewaterhouseCoopers will be several and neither of them will have any liability for breaches thereof by the other or the other’s agents.
Dated: January 4, 2013 PricewaterhouseCoopers
By: /s/ Sanjay Subramanian
Name: Sanjay Subramanian
Title: Principal
Accepted by:
ONLINE RESOURCES CORPORATION
By: /s/ Thomas Ball
Name: Thomas Ball
Title: VP & General Counsel
ACI WORLDWIDE, INC.
By: /s/ Dennis Byrnes
Name: Dennis Byrnes
Title: EVP
| Entailment |
536_nda-5 | 536_nda-5_0 | Q: Receiving Party may share some Confidential Information with some of Receiving Party's employees.
Text: Exhibit (e)(6)
NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT
This Non-Disclosure and Confidentiality Agreement (this “Agreement”), effective as of November 15, 2012 (“Effective Date”), is made and entered into by and between Online Resources Corporation, a Delaware corporation (“ORCC”), and ACI Worldwide, Inc., a Delaware corporation (“Receiving Party”).
WHEREAS, ORCC and Receiving Party (the “Parties”) wish to explore the possibility of engaging in a potential transaction (a “Transaction”);
WHEREAS, in connection with a possible Transaction, Receiving Party desires to gain access to certain Confidential Information (as such terra is defined below) of ORCC; and
WHEREAS, ORCC is willing to disclose such Confidential Information to Receiving Party upon the terms and subject to the conditions set forth in this Agreement.
NOW THEREFORE, in consideration of the foregoing premises the Parties, intending to be legally bound, agree as follows:
1. Confidential Information: Scope.
(a) As used in this Agreement, “Confidential Information” means and includes any and all confidential and/or proprietary information and data, whether in written, tangible, intangible, digital, electronic or oral form, that is disclosed or made available by or on behalf of ORCC to Receiving Party or its Representatives, including without limitation all record-bearing media containing or disclosing such information, relating to the business or operations of ORCC, or is derived therefrom, and includes (without limitation), any and all: (i) non-public, confidential and/or proprietary information of any third party in the possession of ORCC; (ii) ORCC trade secrets, techniques, discoveries, ideas, inventions, concepts, software in various states of development, designs, drawings, images, specifications, data, diagrams, research, economic and financial analyses, strategic plans and analyses, marketing and advertising techniques, client (or customer) and vendor names, client data, new product launches, price data, sales data, personnel files and materials, and all record-bearing media containing or disclosing such information; (iii) all identifiable and/or sensitive “personal information” (as such term is defined in the federal Gramm-Leach-Bliley Act of 1999, as amended) of end users of ORCC’s services, without specific designation as such (including, but not limited to, names, addresses, social security numbers, account numbers and account balances), and all record-bearing media containing or disclosing such information; and (iv) financial information, including (if provided) financial forecasts, projections or plans. All such information shall be treated as ORCC’s Confidential Information under this Agreement regardless of whether or not it is marked or identified as “Confidential Information.” Except as provided in Section 4, neither Party shall announce, disclose or publicize in any manner this Agreement, the terms, or any discussions or negotiations covered by or relating to this Agreement (including with respect to any Transaction) without the prior written consent of the other Party.
(b) As used in this Agreement, “Confidential Information” specifically excludes any information that: (i) has been or becomes publicly available or is now, or in the future, in the public domain in each case without any breach of this Agreement; (ii) prior to disclosure to Receiving Party hereunder, is within the possession of Receiving Party without any obligation of confidentiality; (iii) subsequent to disclosure hereunder, is lawfully received from a third party having rights therein without restriction of such third party’s or Receiving Party’s right to disseminate such information, and without notice of any restriction against its further disclosure; or (iv) is independently developed by Receiving Party by way of persons or entities which have not used, referenced or had access to (directly or indirectly) Confidential Information.
(c) ALL CONFIDENTIAL INFORMATION PROVIDED BY ORCC UNDER THIS AGREEMENT IS PROVIDED “AS IS”. ORCC MAKES ABSOLUTELY NO REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS, IMPLIED OR OTHERWISE, REGARDING THE ACCURACY, COMPLETENESS OR UTILITY OF ANY CONFIDENTIAL INFORMATION.
2. Use. Restriction of Confidential Information. ORCC will disclose certain Confidential Information to Receiving Party solely for the mutually acknowledged purpose recited above, and Receiving Party shall use such Confidential Information only for such purpose. Except to the extent expressly permitted under this Agreement, Receiving Party shall not disclose, disseminate or cause or permit any disclosure or unauthorized use of any Confidential Information, nor shall Receiving Party make any copies, reproductions, summaries or excerpts of any Confidential Information. Receiving Party shall not use any Confidential Information, including, without limitation, any Technical Information, as a basis for developing, marketing or providing products or services that compete (whether directly or indirectly) with the products or services that ORCC sells, markets or provides to its customers. Receiving Party shall at all times protect Confidential Information, using at minimum those measures that it takes to protect its own Confidential Information of a similar nature (provided that such measures are consistent with at least a reasonable degree of care); provided, however, that nothing herein shall relieve Receiving Party of its liability for unauthorized disclosure or use of Confidential Information. In the event Receiving Party loses or causes an unauthorized disclosure of Confidential Information, it will notify ORCC promptly after becoming aware of such disclosure, and will use commercially reasonable efforts to secure the retrieval and return of such Confidential Information. Any delay or failure by ORCC to enforce its rights in the event of any breach of this Agreement shall not be construed to constitute a waiver or release of its rights with respect to such breach or any subsequent breach.
3. Permitted Disclosure. Receiving Party may only disclose Confidential Information provided to it by ORCC hereunder to Receiving Party’s officers, directors, subsidiaries, affiliates, employees, legal counsel, financial advisors and other duly authorized agents and consultants (its “Representatives”) each of whom Receiving Party reasonably determines need to know such Confidential Information for the purpose of assisting the Receiving Party in its evaluation of a Transaction as set forth in this Agreement; provided, however, that Receiving Party shall, prior to disclosing Confidential Information to one or more Representatives in each instance, inform such Representatives of the confidential nature of the Confidential Information and instruct them to maintain the confidentiality of such Confidential Information in a manner consistent with the terms and conditions of this Agreement.
4. Required Disclosure. Except as provided elsewhere in this Section 4, if a Party determines in good faith that it is required under applicable law or legal process to disclose any Confidential Information of a type referred to in clauses (i), (ii), (iii) or (iv) of Section 1(a) (such Confidential Information “Technical Information”), such Party shall give the other Party prompt notice of such fact so that the other Party may obtain a protective order or any other appropriate remedy concerning any such disclosure and/or waive compliance with the nondisclosure requirements of this Agreement. The disclosing Party will reasonably cooperate with the other Party in connection with the other Party’s efforts to obtain any such order or other remedy. If any such order or other remedy does not fully preclude disclosure, or if the other Party waives such compliance, the disclosing Party may make such disclosure, to the extent that the disclosing Party determines in good faith that such disclosure is required under applicable law or legal process, and the disclosing Party will use its best efforts to have confidential treatment accorded to the disclosed Confidential Information. Notwithstanding the foregoing, the Receiving Party may publicly disclose (i) Confidential Information of the type set forth in clause (iv) of Section 1 (a) above and (ii) the fact that the Parties are or have been discussing a proposed Transaction and/or the terms of such proposed Transaction, in each case, only if and to the extent that the Receiving Party determines in good faith based on an opinion of legal counsel that it is required to do so under applicable law or subpoena or other legal process in connection with a Transaction, provided that the Receiving Party furnishes a copy of the proposed disclosure ORCC not less than five business days prior to such disclosure (unless the disclosing Party determines in good faith that it is not reasonably practicable to give such advance notice) and considers in good faith ORCC’s comments on such proposed disclosure. For the avoidance of doubt, this Agreement is not intended to restrict Receiving Party from making any public or private proposal or offer to acquire ORCC or its securities for all cash consideration, or from making such public disclosure in connection therewith as Receiving Party may determine in good faith based on an opinion of legal counsel to be required in accordance with the preceding sentence. Notwithstanding the foregoing, ORCC may publicly disclose the fact that the Parties are or have been discussing a proposed Transaction and/or the terms of such proposed Transaction only if and to the extent that it determines in good faith that it is required to do so under applicable law or legal process in connection with a Transaction, provided that ORCC gives the Receiving Party notice thereof three business days prior to such disclosure unless ORCC determines in good faith that it is not reasonably practicable to give such advance notice.
5. Term of Obligations: Return of Confidential Information. This Agreement shall control and govern all Confidential Information disclosed by ORCC to Receiving Party from and after the Effective Date (as defined above) for a period of one (1) year (the “Term”) unless earlier terminated by the Parties in a separate agreement or instrument executed by both Parties. Promptly upon the expiration or termination of this Agreement, or with respect to Technical Information only, upon. ORCC’s reasonable written request, Receiving Party shall return or destroy all written material (if any) containing or reflecting any Confidential Information. Receiving Party shall direct its Representatives to promptly undertake the same measures described in the preceding sentence. In the event Receiving Party elects to destroy Confidential Information, Receiving Party shall provide ORCC with written certification of such destruction executed by Receiving Party’s officer who supervised such destruction. Notwithstanding the foregoing, Receiving Party may retain only such copies of Confidential Information, subject to the terms and conditions hereunder, as may be necessary or required in accordance with Receiving Party’s internal records retention policies and procedures for applicable legal, compliance and regulatory purposes, provided that counsel to Receiving Party may retain copies of Confidential Information of a type set forth in clause (iv) of Section 1(a) hereof as it determines in good faith to be necessary to advise
Receiving Party in connection with any disclosure permitted by Section 4 hereof provided that all such Confidential Information shall remain subject to the provisions of this Agreement for so long as such information is retained notwithstanding any time limitations set forth in this Agreement, Receiving Party’s obligations to protect Confidential Information received during the Term shall survive and continue for 1 year from and after the Effective Date; provided, however, that (i) Receiving Party’s obligations with respect to Confidential Information that constitutes a trade secret under applicable law shall survive and continue for the longer of 1 year or as long as the same remains a trade secret under applicable law and (ii) this Section 5 will not apply to any information that Receiving Party or its Representatives has previously disclosed as permitted by this Agreement.
6. Ownership of Confidential Information. ORCC owns and shall retain all right, title and interest in and to all Confidential Information, regardless of disclosure hereunder. Absolutely no present or future patent, copyright, trademark, trade secret right or other intellectual property right, nor any right, license, title or interest of any kind, is given, granted, transferred or otherwise conveyed by or under this Agreement with respect to any Confidential Information. Receiving Party shall not reverse-engineer, decompile or disassemble any software disclosed under this Agreement and shall not remove, overprint or change any notice, including as to ownership or confidentiality from any originals or copies of Confidential Information.
7. Equitable Relief. Each Party acknowledges and agrees that a breach of any of its obligations hereunder could cause serious and irreparable harm to the other Party that could not adequately be compensated by monetary damages. Accordingly each Party agrees that, in addition to any of remedies to which the other Party may be entitled at law or in equity, each Party shall be entitled to seek an injunction or injunctions to compel specific performance.
8. Definitive Agreement. Nothing contained in this Agreement binds, commits or imposes any obligation upon either Party to pursue or consummate a Transaction, or to enter into any negotiation or agreement regarding a Transaction or any other business relationship. Unless and until the Parties execute and enter into a separate written, agreement that by its terms is expressly intended to be definitive and mutually binding, neither Party shall be under any obligation of any kind with respect to a Transaction, whether by virtue of this Agreement or any written or oral expression with respect to a Transaction by any person.
9. Further Restrictions.
Each Party hereby acknowledges that the stock of ORCC is publicly traded on the NASDAQ Exchange and that federal securities laws prohibit persons in possession of material non-public information and may, depending on the circumstances, prohibit purchasing or selling the stock of ORCC unless such information is publicly disclosed.
10. Non-Solicitation. For one (1) year from the Effective Date, Receiving Party (including its subsidiaries and affiliates) shall not directly or indirectly solicit, hire or engage ORCC’s employees with whom Receiving Party comes into contact, or of whom it becomes aware, in connection with this Agreement or a Transaction and whose annual base salary from ORCC exceeds $150,000, except with ORCC’s prior written consent; provided, however, that the foregoing restriction shall not apply to the hiring of ORCC’s employees who may respond to internet or other advertisements of general circulation and not specifically targeted at such employees or any action in which no Representative of Receiving Party is involved or aware of the existence of this Agreement or discussions of a possible Transaction.
11. Notice. Any notice which may or is required to be given pursuant to this Agreement shall be in writing and shall be sufficiently given or made if (a) emailed or sent by fax, (b) sent via nationally recognized overnight courier, or (c) served personally upon the Party for whom it is intended, and in each event shall be addressed to the President, Chief Executive Officer or General Counsel of the other Party at its notice address provided under its signature below. The date of receipt of any notice under this Agreement shall be as follows: (i) if served personally, on the date of delivery thereof; (ii) if sent by overnight courier, on the next business day after transmission; and (iii) if emailed or sent by fax, on the next business day after dispatch.
12. No Waiver. No failure or delay by a Party in exercising any of its rights shall operate as a waiver thereof, and no single or partial exercise of any right will preclude any other or further exercise thereof.
13. Severability. In the event that any provision or portion of this Agreement is determined to be invalid or unenforceable for any reason, in whole or in part, the remaining provisions of this Agreement shall be unaffected thereby and shall remain in full force and effect to the fullest extent permitted by applicable law.
14. Restrictions on. Export. A Receiving Party will not export, directly or indirectly, any technical data acquired from the Disclosing Party or any product utilizing any such data to any country for which the U.S. government or any agency thereof at the time of export requires an export license or other governmental approval, without-first obtaining (in each instance) such license or approval and only after receiving express authorization from the Disclosing Party.
15. Governing Law: Venue. The validity, construction and performance of this Agreement shall be governed by, and construed and enforced in accordance with, the applicable laws of the State of Delaware without regard to that state’s principles regarding conflict of laws or choice of laws. Each Party hereby consents, further, to the appropriate state or federal district court in Wilmington, Delaware as the proper venue and jurisdiction for the determination of any rights and the resolution of any disputes arising under or as a result of this Agreement. Nothing in this Agreement prohibits a Party from seeking specific performance, injunctive, other equitable relief, and/or damages as a remedy for a breach or threatened breach of this Agreement. The prevailing Party in any arbitration, litigation or other legal proceeding arising out of, or relating to, this Agreement shall be entitled to recover from the other Party (in addition to other relief awarded or granted) its reasonable costs and expenses, including related attorneys fees in the amount determined by the appropriate arbitrator, trial court or appellate court.
16. Entire Agreement: General Terms. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and merges and supersedes all prior and contemporaneous negotiations, discussion, memoranda and agreements pertaining thereto. Nothing in this Agreement is intended to create or shall be construed as creating an employer-employee relationship or any partnership, agency, joint venture or similar relationship with any person. This Agreement shall not be amended, modified or canceled except in a written instrument executed by both Parties. Both Parties actively participated in the preparation and negotiation of this Agreement, and accordingly, this Agreement shall be interpreted and governed without regard as to which Party principally drafted this Agreement. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original instrument.
IN WITNESS WHEREOF, the Parties have entered into this Agreement effective as of the Effective Date defined above:
Online Resources Corporation ACI Worldwide, Inc.
By: /s/ Joseph L. Cowan By: /s/ Dennis P. Byrnes
Joseph L. Cowan Name:Dennis P. Byrnes
President and CEO Title: Executive Vice President
Notice Address: Notice Address:
4795 Meadow Wood Lane 6060 Coventry Drive
Chantilly, VA 20151 Elkhorn, NE 68022
Email: [email protected] Email: [email protected]
Fax: 703.653.2605 Fax: 402.778.2567
JOINDER AGREEMENT
By executing this Joinder Agreement, PricewaterhouseCoopers (the “Joining Party”), hereby irrevocably agrees, effective as of the date hereof, to become a party to the Non-Disclosure and Confidentiality Agreement (the “Confidentiality Agreement”), dated November 15, 2012, between Online Resources Corporation and ACI Worldwide, Inc. (“ACIW”). as if it were the “Receiving Party” (as therein defined). Without limiting the foregoing, the Joining Party hereby acknowledges and agrees that (1) it has been furnished a copy of the Confidentiality Agreement and (2) the Joining Party will observe all obligations of a “Receiving Party” there under. Upon execution and delivery of this Joinder Agreement, the obligations of ACIW and PricewaterhouseCoopers will be several and neither of them will have any liability for breaches thereof by the other or the other’s agents.
Dated: January 4, 2013 PricewaterhouseCoopers
By: /s/ Sanjay Subramanian
Name: Sanjay Subramanian
Title: Principal
Accepted by:
ONLINE RESOURCES CORPORATION
By: /s/ Thomas Ball
Name: Thomas Ball
Title: VP & General Counsel
ACI WORLDWIDE, INC.
By: /s/ Dennis Byrnes
Name: Dennis Byrnes
Title: EVP
| Entailment |
536_nda-4 | 536_nda-4_0 | Q: Receiving Party shall not use any Confidential Information for any purpose other than the purposes stated in Agreement.
Text: Exhibit (e)(6)
NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT
This Non-Disclosure and Confidentiality Agreement (this “Agreement”), effective as of November 15, 2012 (“Effective Date”), is made and entered into by and between Online Resources Corporation, a Delaware corporation (“ORCC”), and ACI Worldwide, Inc., a Delaware corporation (“Receiving Party”).
WHEREAS, ORCC and Receiving Party (the “Parties”) wish to explore the possibility of engaging in a potential transaction (a “Transaction”);
WHEREAS, in connection with a possible Transaction, Receiving Party desires to gain access to certain Confidential Information (as such terra is defined below) of ORCC; and
WHEREAS, ORCC is willing to disclose such Confidential Information to Receiving Party upon the terms and subject to the conditions set forth in this Agreement.
NOW THEREFORE, in consideration of the foregoing premises the Parties, intending to be legally bound, agree as follows:
1. Confidential Information: Scope.
(a) As used in this Agreement, “Confidential Information” means and includes any and all confidential and/or proprietary information and data, whether in written, tangible, intangible, digital, electronic or oral form, that is disclosed or made available by or on behalf of ORCC to Receiving Party or its Representatives, including without limitation all record-bearing media containing or disclosing such information, relating to the business or operations of ORCC, or is derived therefrom, and includes (without limitation), any and all: (i) non-public, confidential and/or proprietary information of any third party in the possession of ORCC; (ii) ORCC trade secrets, techniques, discoveries, ideas, inventions, concepts, software in various states of development, designs, drawings, images, specifications, data, diagrams, research, economic and financial analyses, strategic plans and analyses, marketing and advertising techniques, client (or customer) and vendor names, client data, new product launches, price data, sales data, personnel files and materials, and all record-bearing media containing or disclosing such information; (iii) all identifiable and/or sensitive “personal information” (as such term is defined in the federal Gramm-Leach-Bliley Act of 1999, as amended) of end users of ORCC’s services, without specific designation as such (including, but not limited to, names, addresses, social security numbers, account numbers and account balances), and all record-bearing media containing or disclosing such information; and (iv) financial information, including (if provided) financial forecasts, projections or plans. All such information shall be treated as ORCC’s Confidential Information under this Agreement regardless of whether or not it is marked or identified as “Confidential Information.” Except as provided in Section 4, neither Party shall announce, disclose or publicize in any manner this Agreement, the terms, or any discussions or negotiations covered by or relating to this Agreement (including with respect to any Transaction) without the prior written consent of the other Party.
(b) As used in this Agreement, “Confidential Information” specifically excludes any information that: (i) has been or becomes publicly available or is now, or in the future, in the public domain in each case without any breach of this Agreement; (ii) prior to disclosure to Receiving Party hereunder, is within the possession of Receiving Party without any obligation of confidentiality; (iii) subsequent to disclosure hereunder, is lawfully received from a third party having rights therein without restriction of such third party’s or Receiving Party’s right to disseminate such information, and without notice of any restriction against its further disclosure; or (iv) is independently developed by Receiving Party by way of persons or entities which have not used, referenced or had access to (directly or indirectly) Confidential Information.
(c) ALL CONFIDENTIAL INFORMATION PROVIDED BY ORCC UNDER THIS AGREEMENT IS PROVIDED “AS IS”. ORCC MAKES ABSOLUTELY NO REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS, IMPLIED OR OTHERWISE, REGARDING THE ACCURACY, COMPLETENESS OR UTILITY OF ANY CONFIDENTIAL INFORMATION.
2. Use. Restriction of Confidential Information. ORCC will disclose certain Confidential Information to Receiving Party solely for the mutually acknowledged purpose recited above, and Receiving Party shall use such Confidential Information only for such purpose. Except to the extent expressly permitted under this Agreement, Receiving Party shall not disclose, disseminate or cause or permit any disclosure or unauthorized use of any Confidential Information, nor shall Receiving Party make any copies, reproductions, summaries or excerpts of any Confidential Information. Receiving Party shall not use any Confidential Information, including, without limitation, any Technical Information, as a basis for developing, marketing or providing products or services that compete (whether directly or indirectly) with the products or services that ORCC sells, markets or provides to its customers. Receiving Party shall at all times protect Confidential Information, using at minimum those measures that it takes to protect its own Confidential Information of a similar nature (provided that such measures are consistent with at least a reasonable degree of care); provided, however, that nothing herein shall relieve Receiving Party of its liability for unauthorized disclosure or use of Confidential Information. In the event Receiving Party loses or causes an unauthorized disclosure of Confidential Information, it will notify ORCC promptly after becoming aware of such disclosure, and will use commercially reasonable efforts to secure the retrieval and return of such Confidential Information. Any delay or failure by ORCC to enforce its rights in the event of any breach of this Agreement shall not be construed to constitute a waiver or release of its rights with respect to such breach or any subsequent breach.
3. Permitted Disclosure. Receiving Party may only disclose Confidential Information provided to it by ORCC hereunder to Receiving Party’s officers, directors, subsidiaries, affiliates, employees, legal counsel, financial advisors and other duly authorized agents and consultants (its “Representatives”) each of whom Receiving Party reasonably determines need to know such Confidential Information for the purpose of assisting the Receiving Party in its evaluation of a Transaction as set forth in this Agreement; provided, however, that Receiving Party shall, prior to disclosing Confidential Information to one or more Representatives in each instance, inform such Representatives of the confidential nature of the Confidential Information and instruct them to maintain the confidentiality of such Confidential Information in a manner consistent with the terms and conditions of this Agreement.
4. Required Disclosure. Except as provided elsewhere in this Section 4, if a Party determines in good faith that it is required under applicable law or legal process to disclose any Confidential Information of a type referred to in clauses (i), (ii), (iii) or (iv) of Section 1(a) (such Confidential Information “Technical Information”), such Party shall give the other Party prompt notice of such fact so that the other Party may obtain a protective order or any other appropriate remedy concerning any such disclosure and/or waive compliance with the nondisclosure requirements of this Agreement. The disclosing Party will reasonably cooperate with the other Party in connection with the other Party’s efforts to obtain any such order or other remedy. If any such order or other remedy does not fully preclude disclosure, or if the other Party waives such compliance, the disclosing Party may make such disclosure, to the extent that the disclosing Party determines in good faith that such disclosure is required under applicable law or legal process, and the disclosing Party will use its best efforts to have confidential treatment accorded to the disclosed Confidential Information. Notwithstanding the foregoing, the Receiving Party may publicly disclose (i) Confidential Information of the type set forth in clause (iv) of Section 1 (a) above and (ii) the fact that the Parties are or have been discussing a proposed Transaction and/or the terms of such proposed Transaction, in each case, only if and to the extent that the Receiving Party determines in good faith based on an opinion of legal counsel that it is required to do so under applicable law or subpoena or other legal process in connection with a Transaction, provided that the Receiving Party furnishes a copy of the proposed disclosure ORCC not less than five business days prior to such disclosure (unless the disclosing Party determines in good faith that it is not reasonably practicable to give such advance notice) and considers in good faith ORCC’s comments on such proposed disclosure. For the avoidance of doubt, this Agreement is not intended to restrict Receiving Party from making any public or private proposal or offer to acquire ORCC or its securities for all cash consideration, or from making such public disclosure in connection therewith as Receiving Party may determine in good faith based on an opinion of legal counsel to be required in accordance with the preceding sentence. Notwithstanding the foregoing, ORCC may publicly disclose the fact that the Parties are or have been discussing a proposed Transaction and/or the terms of such proposed Transaction only if and to the extent that it determines in good faith that it is required to do so under applicable law or legal process in connection with a Transaction, provided that ORCC gives the Receiving Party notice thereof three business days prior to such disclosure unless ORCC determines in good faith that it is not reasonably practicable to give such advance notice.
5. Term of Obligations: Return of Confidential Information. This Agreement shall control and govern all Confidential Information disclosed by ORCC to Receiving Party from and after the Effective Date (as defined above) for a period of one (1) year (the “Term”) unless earlier terminated by the Parties in a separate agreement or instrument executed by both Parties. Promptly upon the expiration or termination of this Agreement, or with respect to Technical Information only, upon. ORCC’s reasonable written request, Receiving Party shall return or destroy all written material (if any) containing or reflecting any Confidential Information. Receiving Party shall direct its Representatives to promptly undertake the same measures described in the preceding sentence. In the event Receiving Party elects to destroy Confidential Information, Receiving Party shall provide ORCC with written certification of such destruction executed by Receiving Party’s officer who supervised such destruction. Notwithstanding the foregoing, Receiving Party may retain only such copies of Confidential Information, subject to the terms and conditions hereunder, as may be necessary or required in accordance with Receiving Party’s internal records retention policies and procedures for applicable legal, compliance and regulatory purposes, provided that counsel to Receiving Party may retain copies of Confidential Information of a type set forth in clause (iv) of Section 1(a) hereof as it determines in good faith to be necessary to advise
Receiving Party in connection with any disclosure permitted by Section 4 hereof provided that all such Confidential Information shall remain subject to the provisions of this Agreement for so long as such information is retained notwithstanding any time limitations set forth in this Agreement, Receiving Party’s obligations to protect Confidential Information received during the Term shall survive and continue for 1 year from and after the Effective Date; provided, however, that (i) Receiving Party’s obligations with respect to Confidential Information that constitutes a trade secret under applicable law shall survive and continue for the longer of 1 year or as long as the same remains a trade secret under applicable law and (ii) this Section 5 will not apply to any information that Receiving Party or its Representatives has previously disclosed as permitted by this Agreement.
6. Ownership of Confidential Information. ORCC owns and shall retain all right, title and interest in and to all Confidential Information, regardless of disclosure hereunder. Absolutely no present or future patent, copyright, trademark, trade secret right or other intellectual property right, nor any right, license, title or interest of any kind, is given, granted, transferred or otherwise conveyed by or under this Agreement with respect to any Confidential Information. Receiving Party shall not reverse-engineer, decompile or disassemble any software disclosed under this Agreement and shall not remove, overprint or change any notice, including as to ownership or confidentiality from any originals or copies of Confidential Information.
7. Equitable Relief. Each Party acknowledges and agrees that a breach of any of its obligations hereunder could cause serious and irreparable harm to the other Party that could not adequately be compensated by monetary damages. Accordingly each Party agrees that, in addition to any of remedies to which the other Party may be entitled at law or in equity, each Party shall be entitled to seek an injunction or injunctions to compel specific performance.
8. Definitive Agreement. Nothing contained in this Agreement binds, commits or imposes any obligation upon either Party to pursue or consummate a Transaction, or to enter into any negotiation or agreement regarding a Transaction or any other business relationship. Unless and until the Parties execute and enter into a separate written, agreement that by its terms is expressly intended to be definitive and mutually binding, neither Party shall be under any obligation of any kind with respect to a Transaction, whether by virtue of this Agreement or any written or oral expression with respect to a Transaction by any person.
9. Further Restrictions.
Each Party hereby acknowledges that the stock of ORCC is publicly traded on the NASDAQ Exchange and that federal securities laws prohibit persons in possession of material non-public information and may, depending on the circumstances, prohibit purchasing or selling the stock of ORCC unless such information is publicly disclosed.
10. Non-Solicitation. For one (1) year from the Effective Date, Receiving Party (including its subsidiaries and affiliates) shall not directly or indirectly solicit, hire or engage ORCC’s employees with whom Receiving Party comes into contact, or of whom it becomes aware, in connection with this Agreement or a Transaction and whose annual base salary from ORCC exceeds $150,000, except with ORCC’s prior written consent; provided, however, that the foregoing restriction shall not apply to the hiring of ORCC’s employees who may respond to internet or other advertisements of general circulation and not specifically targeted at such employees or any action in which no Representative of Receiving Party is involved or aware of the existence of this Agreement or discussions of a possible Transaction.
11. Notice. Any notice which may or is required to be given pursuant to this Agreement shall be in writing and shall be sufficiently given or made if (a) emailed or sent by fax, (b) sent via nationally recognized overnight courier, or (c) served personally upon the Party for whom it is intended, and in each event shall be addressed to the President, Chief Executive Officer or General Counsel of the other Party at its notice address provided under its signature below. The date of receipt of any notice under this Agreement shall be as follows: (i) if served personally, on the date of delivery thereof; (ii) if sent by overnight courier, on the next business day after transmission; and (iii) if emailed or sent by fax, on the next business day after dispatch.
12. No Waiver. No failure or delay by a Party in exercising any of its rights shall operate as a waiver thereof, and no single or partial exercise of any right will preclude any other or further exercise thereof.
13. Severability. In the event that any provision or portion of this Agreement is determined to be invalid or unenforceable for any reason, in whole or in part, the remaining provisions of this Agreement shall be unaffected thereby and shall remain in full force and effect to the fullest extent permitted by applicable law.
14. Restrictions on. Export. A Receiving Party will not export, directly or indirectly, any technical data acquired from the Disclosing Party or any product utilizing any such data to any country for which the U.S. government or any agency thereof at the time of export requires an export license or other governmental approval, without-first obtaining (in each instance) such license or approval and only after receiving express authorization from the Disclosing Party.
15. Governing Law: Venue. The validity, construction and performance of this Agreement shall be governed by, and construed and enforced in accordance with, the applicable laws of the State of Delaware without regard to that state’s principles regarding conflict of laws or choice of laws. Each Party hereby consents, further, to the appropriate state or federal district court in Wilmington, Delaware as the proper venue and jurisdiction for the determination of any rights and the resolution of any disputes arising under or as a result of this Agreement. Nothing in this Agreement prohibits a Party from seeking specific performance, injunctive, other equitable relief, and/or damages as a remedy for a breach or threatened breach of this Agreement. The prevailing Party in any arbitration, litigation or other legal proceeding arising out of, or relating to, this Agreement shall be entitled to recover from the other Party (in addition to other relief awarded or granted) its reasonable costs and expenses, including related attorneys fees in the amount determined by the appropriate arbitrator, trial court or appellate court.
16. Entire Agreement: General Terms. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and merges and supersedes all prior and contemporaneous negotiations, discussion, memoranda and agreements pertaining thereto. Nothing in this Agreement is intended to create or shall be construed as creating an employer-employee relationship or any partnership, agency, joint venture or similar relationship with any person. This Agreement shall not be amended, modified or canceled except in a written instrument executed by both Parties. Both Parties actively participated in the preparation and negotiation of this Agreement, and accordingly, this Agreement shall be interpreted and governed without regard as to which Party principally drafted this Agreement. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original instrument.
IN WITNESS WHEREOF, the Parties have entered into this Agreement effective as of the Effective Date defined above:
Online Resources Corporation ACI Worldwide, Inc.
By: /s/ Joseph L. Cowan By: /s/ Dennis P. Byrnes
Joseph L. Cowan Name:Dennis P. Byrnes
President and CEO Title: Executive Vice President
Notice Address: Notice Address:
4795 Meadow Wood Lane 6060 Coventry Drive
Chantilly, VA 20151 Elkhorn, NE 68022
Email: [email protected] Email: [email protected]
Fax: 703.653.2605 Fax: 402.778.2567
JOINDER AGREEMENT
By executing this Joinder Agreement, PricewaterhouseCoopers (the “Joining Party”), hereby irrevocably agrees, effective as of the date hereof, to become a party to the Non-Disclosure and Confidentiality Agreement (the “Confidentiality Agreement”), dated November 15, 2012, between Online Resources Corporation and ACI Worldwide, Inc. (“ACIW”). as if it were the “Receiving Party” (as therein defined). Without limiting the foregoing, the Joining Party hereby acknowledges and agrees that (1) it has been furnished a copy of the Confidentiality Agreement and (2) the Joining Party will observe all obligations of a “Receiving Party” there under. Upon execution and delivery of this Joinder Agreement, the obligations of ACIW and PricewaterhouseCoopers will be several and neither of them will have any liability for breaches thereof by the other or the other’s agents.
Dated: January 4, 2013 PricewaterhouseCoopers
By: /s/ Sanjay Subramanian
Name: Sanjay Subramanian
Title: Principal
Accepted by:
ONLINE RESOURCES CORPORATION
By: /s/ Thomas Ball
Name: Thomas Ball
Title: VP & General Counsel
ACI WORLDWIDE, INC.
By: /s/ Dennis Byrnes
Name: Dennis Byrnes
Title: EVP
| Entailment |
538_nda-11 | 538_nda-11_0 | Q: Receiving Party shall not reverse engineer any objects which embody Disclosing Party's Confidential Information.
Text: STRICTLY CONFIDENTIAL
January 27, 2012
Sycamore Partners Management, L.L.C.
9 West 57 Street, 31 Floorthst
New York, New York 10019
Attention: Stefan Kaluzny
Managing Director
Dear Mr. Kaluzny:
CONFIDENTIALITY AGREEMENT
This Confidentiality Agreement (this “Agreement”) is dated as of January 27, 2012 by and between Sycamore Partners Management, L.L.C., a Delaware limited liability company (the “Receiving Party”) and The Talbots, Inc., a Delaware corporation (together with its subsidiaries, the “Company”).
1. Confidential Information; Representatives. (a) The Receiving Party is considering a possible business combination transaction (whether negotiated directly with the Company’s Board of Directors or otherwise) with respect to the Company (the “Transaction”), and, in order to assist the Receiving Party in evaluating the possible Transaction, the Company is prepared to make available to the Receiving Party certain information concerning the business, operations, strategy and prospects of the Company (all such information, the “Confidential Information”). As a condition to the Confidential Information being furnished to the Receiving Party and the directors, officers, principals, partners, members, employees, agents, consultants, related investment funds, advisors, attorneys, accountants, affiliates, potential sources of capital and financing, and financial advisors (collectively, “Representatives”) of the Receiving Party, the Receiving Party agrees to treat the Confidential Information strictly in accordance with the provisions of this Agreement and to otherwise comply, and to cause its Representatives to comply, with all obligations hereinafter set forth.
(b) The term “Confidential Information” shall include, without limitation, any and all information concerning the Company and its business, operations, strategic initiatives, financing, employees, strategies or prospects that is furnished to the Receiving Party or its Representatives by or on behalf of the Company, whether furnished before or after the date of this Agreement, including, without limitation, any written or oral analyses, business or strategic plans, compilations, studies, data, reports, interpretations, projections, forecasts, records, notes, copies, excerpts, memoranda, documents or other materials (in whatever form maintained or conveyed, whether documentary, computerized, verbal form or otherwise), that contain or otherwise reflect Confidential Information concerning the Company or its business, operations, strategic
initiatives, financing, employees, strategies or prospects prepared by or on behalf of the Receiving Party, any of the Receiving Party’s Representatives, the Company or any Company Representatives (as defined below) or that otherwise reflect any conversations with Company Representatives involving or relating to the Confidential Information.
2. Excluded Information. The Confidential Information shall not include information that the Receiving Party can demonstrate (a) is or becomes available to the public other than as a result of acts by the Receiving Party or its Representatives in breach of the terms of this Agreement, (b) was in the Receiving Party’s possession prior to disclosure by the Company, provided that such information, to the Receiving Party’s knowledge, was not subject to another confidentiality agreement with the Company or another party, (c) has been independently developed by the Receiving Party without reference to, or the use of, any Confidential Information or (d) is disclosed to the Receiving Party by a third party, to the Receiving Party’s knowledge, not bound by any duty or obligation of confidentiality on a non-confidential basis.
3. Limitations on Use and Disclosure of Confidential Information. (a) The Receiving Party shall, and shall cause its Representatives to, use the Confidential Information solely for the purpose of evaluating a possible Transaction. The Receiving Party shall, and shall cause its Representatives to, keep the Confidential Information in confidence and shall not disclose any of the Confidential Information in any manner whatsoever; provided, however, that (i) the Receiving Party may make disclosure of information contained in the Confidential Information if required by applicable law, regulation or legal or regulatory process; provided, that the Receiving Party shall have first complied with the terms of Section 9 hereof, (ii) the Receiving Party may make disclosure of information contained in the Confidential Information to the extent that the Company gives its prior written consent, and (iii) any information contained in the Confidential Information may be disclosed to the Receiving Party’s Representatives who reasonably require access to such information for the purpose of evaluating a possible Transaction and who agree to keep such information in confidence to the same extent as described herein; provided, further, that the Receiving Party shall not make any disclosure of any Confidential Information to any potential sources of equity financing without the Company’s prior written consent. The Receiving Party shall be responsible for any breach of the terms of this Agreement by the Receiving Party or by any of its Representatives.
(b) The Receiving Party agrees that, for a period of eighteen months from the date of this Agreement, the Receiving Party shall not (and shall cause its affiliates, subject to Section 22 hereof, not to), directly or indirectly, (i) use the Confidential Information to divert or attempt to divert any business or customer of the Company or (ii) employ or solicit, or initiate contact for employment with, any (A) director, officer or other senior or key employee of the Company or (B) any other employee of the Company whom the Receiving Party meets during its evaluation of the possible Transaction or about whom the Receiving Party receives Confidential Information; provided, however, a general advertisement or other recruiting efforts not specifically targeting any such employees of the Company shall not be considered a solicitation or unauthorized hiring.
(c) If the Receiving Party discovers any unauthorized disclosure or use of any Confidential Information by it or its Representatives, the Receiving Party hereby covenants to promptly notify the Company in writing of any such unauthorized disclosure or use.
4. Non-Disclosure of Existence of Negotiations. Without the prior written consent of the Company or except as may be required by applicable law or regulation, the Receiving Party and its Representatives shall not disclose to any person that any discussions or negotiations are taking place between the parties concerning a possible Transaction, including the content, timing and status of such discussions or negotiations (the “Discussion Information”).
5. No Representations by the Company. The Company will have the exclusive authority to decide what Confidential Information (if any) is to be made available to the Receiving Party and its Representatives. Neither the Company nor any of its directors, officers, employees, agents, consultants, advisors, attorneys, accountants and affiliates (collectively, the “Company Representatives”) will be under any obligation to make any particular Confidential Information available to the Receiving Party or any of the Receiving Party’s Representatives or to supplement or update any Confidential Information previously furnished. Neither the Company nor any of the Company Representatives has made or is making any representation or warranty, express or implied, as to the accuracy or completeness of any Confidential Information, and neither the Company nor any of the Company Representatives will have any liability to the Receiving Party or to any of the Receiving Party’s Representatives relating to or resulting from the use of any Confidential Information or any inaccuracies or errors therein or omissions therefrom. Only those representations and warranties (if any) that are included in any final definitive written agreement that provides for the consummation of a negotiated transaction between the Receiving Party and the Company and is validly executed on behalf of the Receiving Party and the Company will have legal effect.
6. Standstill Agreement. In consideration of the Confidential Information being furnished to the Receiving Party pursuant to this Agreement, the Receiving Party agrees that, for a period of one year from the date of this Agreement (or, such shorter period agreed to by the Company with a third party who is provided access to the Confidential Information for the purpose of evaluating a possible Transaction, the “Standstill Period”), unless expressly requested by the Company or its Board of Directors (or any committee thereof) in writing, the Receiving Party shall not (and shall cause its affiliates not to and shall cause its and their respective Representatives acting at its and their respective behalf not to): (a) in any manner acting alone or in concert with others, acquire, agree to acquire or make any proposal to acquire, directly or indirectly, by means of purchase, merger, business combination or in any other manner, beneficial ownership of any securities of the Company, direct or indirect rights to acquire any securities of the Company (including any derivative securities with economic equivalents of ownership of any of such securities), any right to vote or to direct the voting of any securities of the Company or any assets of the Company, (b) make, or in any way participate in, directly or indirectly, any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote, or seek to advise or influence any person with respect to the voting of, any voting securities of the Company, (c) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) with respect to any voting securities of the Company, other than any group comprised solely of the Receiving Party and its affiliates, (d) otherwise act, alone or in concert with others, to seek to control, advise, change or influence the management, board of directors, governing instruments, policies or affairs of the Company, (e) make any public disclosure, or take any action that could require the Company to make any public disclosure, with respect to any of the matters set forth in this Agreement, other than the required amendment to the Receiving Party’s Schedule 13D filing as a result of the execution and delivery of this Agreement, (f) disclose any intention, plan or arrangement inconsistent with the foregoing or (g) have any discussions or enter into any arrangements (whether written or oral) with, or advise, assist or encourage any other persons in connection with any of the foregoing. The Receiving Party also agrees during such period not to request the Company or any of the Company Representatives, directly or indirectly, to amend or waive any provision of this Section 6 (including this sentence). Notwithstanding any provision in this Agreement to the contrary, (i) the Standstill Period shall terminate immediately if, after the date of this Agreement, (A) the Company enters into a definitive agreement with a third party to effectuate a sale of 50% or more of the consolidated assets of the Company or 50% or more of the Company’s outstanding equity securities, (B) the Company publicly announces the conclusion of its previously announced strategic review process without a definitive agreement to sell the Company, (C) the Company makes an assignment for the benefit of creditors or commences any proceeding under any bankruptcy reorganization, insolvency, dissolution or liquidation law of any jurisdiction or (D) any bankruptcy petition is filed or any such proceeding is commenced against the Company and either (1) the Company indicates its approval thereof, consent thereto or acquiescence therein, or (2) such petition application or proceeding is not dismissed within 30 days and (ii) the Standstill Period solely with respect to clause (b) of this Section 6 shall terminate ten days prior to the expiration of the applicable time period for stockholders to nominate directors for election at the Company’s 2012 annual stockholders meeting to be scheduled in accordance with Section 8 hereof (and, for the avoidance of doubt, the restrictions in clauses (c), (d), (e), (f) and (g) of this Section 6 shall not apply to the activities that were previously expressly prohibited by clause (b) of this Section 6 in the event the restrictions in clause (b) are terminated pursuant to this clause (ii)).
7. Return of Confidential Information. Promptly upon the written request of the Company, the Receiving Party will return all copies of the Confidential Information to the Company, and all notes, studies, reports, memoranda and other documents or materials prepared by the Receiving Party or its Representatives that contain or reflect any Confidential Information shall be destroyed. Notwithstanding the return to the Company or destruction of Confidential Information pursuant to this Section 7, the Receiving Party and its Representatives will continue to be bound by their confidentiality obligations and other obligations under this Agreement for the term hereof. Notwithstanding the foregoing, (a) the Receiving Party’s legal department and/or outside counsel may keep one copy of the Confidential Information (in electronic or paper form) and, with respect to the Receiving Party’s Representatives who are accounting firms, such firms may keep one copy of the Confidential Information, in each case, if required to comply with applicable law or regulation and (b) the Receiving Party and its Representatives may retain Confidential Information to the extent it is “backed-up” on its or their (as the case may be) electronic information management and communications systems or servers, is not available to an end user and cannot be expunged without considerable effort; provided, that any such information so retained pursuant to clauses (a) and (b) of this Section 7 shall be held in compliance with the terms of this Agreement for a period of eighteen months from the date hereof.
8. 2012 Annual Stockholders Meeting. The Company agrees (a) that the meeting date for its 2012 annual stockholders meeting (with respect to the Company’s fiscal year ended January 28, 2012) will be held no earlier than thirty-one days after the first anniversary of the Company’s 2011 annual stockholders meeting (with respect to the Company’s fiscal year ended January 29, 2011) and (b) to provide the Receiving Party a copy of the press release announcing the date of its 2012 annual meeting on the date such press release is publicly issued.
9. Subpoena or Court Order. In the event that the Receiving Party or anyone to whom it discloses the Confidential Information receives a request to disclose all or any part of the Confidential Information or Discussion Information under the terms of a subpoena or other order issued by a court of competent jurisdiction or by another governmental agency, the Receiving Party shall if permitted pursuant to applicable law (a) promptly notify the Company of the existence, terms and circumstances surrounding such a request, (b) consult with the Company on the advisability of taking steps to resist or narrow such request, (c) if disclosure of such Confidential Information or Discussion Information is required, furnish only such portion of the Confidential Information or Discussion Information as the Receiving Party is advised by its legal counsel is legally required to be disclosed and (d) if requested by the Company, cooperate with the Company in its efforts to obtain a protective order or other relief to prevent the disclosure of the Confidential Information or Discussion Information or other reliable assurance that confidential treatment will be accorded to such portion of the Confidential Information or Discussion Information, as applicable, that is required to be disclosed.
10. Definitive Agreement. Unless and until a definitive written agreement between the Receiving Party and the Company with respect to a Transaction has been executed and delivered, neither the Receiving Party nor the Company will be under
any legal obligation of any kind whatsoever with respect to such a Transaction by virtue of this or any other written or oral expression by either of them or their Representatives except, in the case of this Agreement, for the matters specifically agreed to herein.
11. Remedies. Each of the parties hereto acknowledges that in the event of any breach of the terms of this Agreement, the other party could not be made whole by monetary damages only. Accordingly, each of the parties hereto, in addition to any other remedy to which it may be entitled in law or in equity, shall be entitled to an injunction (which shall include a temporary restraining order) to prevent breaches of the terms of this Agreement.
12. Communications. Without the Company’s prior written consent, which may be withheld by the Company in its sole discretion, the Receiving Party shall not (and shall cause its Representatives not to) initiate, other than through the Company’s financial and legal advisors or such other persons, as designated by the Company in writing, any (a) communication concerning the Confidential Information, (b) requests for meetings with management of the Company in connection with the possible Transaction or other transaction between the parties or (c) communication relating to the business of the Company or the possible Transaction, in each case, with any officer, director or employee of the Company.
13. Securities Laws. The Receiving Party acknowledges that it is aware and that the Receiving Party and its Representatives have been advised that the United States securities laws prohibit any person having non-public material information about a company from purchasing or selling securities of that company or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities.
14. Entire Agreement; Amendments. This Agreement represents the entire understanding and agreement of the parties hereto with respect to the matters contained herein, and may be amended, modified or waived only by a separate writing executed by the Receiving Party and the Company expressly so amending, modifying or waiving this Agreement. This Agreement shall inure to the benefit of and be binding upon the parties and their respective successors and assigns.
15. No Waiver. No failure or delay by either party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder.
16. Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of New York, without regard to the laws of conflict of laws. Each of the parties hereto: (a) irrevocably and unconditionally consents and submits to the jurisdiction of the state and federal courts located in the State of New York for purposes of any action, suit or proceeding arising out of or relating to this Agreement; (b) agrees that service of any process, summons, notice or document by U.S. registered mail to the address set forth at the end of this Agreement shall be effective service of process for any action, suit or proceeding brought against such party; (c) irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of or relating to this Agreement in any state or federal court located in the State of New York; and (d) irrevocably and unconditionally waives the right to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any action, suit or proceeding arising out of or relating to this Agreement that is brought in any state or federal court located in the State of New York has been brought in an inconvenient forum.
17. Expenses. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines that a party has breached this Agreement, then such party shall be liable and pay to the non-breaching party the legal fees and expenses such non-breaching party has incurred in connection with such litigation, including any appeal therefrom.
18. Captions. The Captions contained in this Agreement are for convenience only and shall not affect the construction or interpretation of any provisions of this Agreement.
19. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same Agreement.
20. Severability. In the event any term of this Agreement is found by any court to be void or otherwise unenforceable, the remainder of this Agreement shall remain valid and enforceable as though such term were absent upon the date of its execution.
21. Notices. All notices and other communications required or permitted hereunder will be in writing and will be deemed to have been duly given when delivered in person or when dispatched by email or electronic facsimile transfer (with such facsimile confirmed in writing by mail simultaneously dispatched) to the Company at the address specified below:
The Talbots, Inc.
Attention: Chief Operating Officer
One Talbots Drive
Hingham, MA 02043
Telephone: 781-741-7600
Facsimile: 781-741-4927
with copies to:
The Talbots, Inc.
Attention: General Counsel
211 South Ridge St.
Rye Brook, NY 10573
Telephone: 914-934-8877
Facsimile: 914-934-9136
and
Dewey & LeBoeuf LLP
Attention: Morton A. Pierce, Esq.
Chang-Do Gong, Esq.
1301 Avenue of the Americas
New York, NY 10019
Telephone: 212-259-8000
Facsimile: 212-259-6333
22. Non-Private Equity Affiliates. Notwithstanding anything to the contrary provided elsewhere herein, none of the provisions of this Agreement shall in any way limit the ordinary course business services and activities of the Receiving Party and its affiliates; provided, that (a) such services and activities are distinct from the private equity business and (b) the Confidential Information is not made available to Representatives of the Receiving Party and its affiliates who are not involved in the private equity business or who are engaged in investments that are not private equity investments and such ordinary course business services and activities are otherwise conducted without any reference to, or use of, the Confidential Information. The Receiving Party further represents to the Company that the Receiving Party has implemented appropriate internal restrictions on the sharing of confidential information (including, without limitation, the implementation of ethical walls around certain affiliates, to comply with federal securities laws of the United States).
23. Termination. Except as otherwise specified herein, the obligations of the parties set forth in this Agreement shall terminate and be of no further force and effect eighteen months from the date hereof.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, THIS AGREEMENT is executed and delivered effective as of the date first written above.
THE TALBOTS, INC.
By /s/ Richard T. O’Connell, Jr.
Name: Richard T. O’Connell, Jr.
Title: Executive Vice President
SYCAMORE PARTNERS MANAGEMENT, L.L.C.
By /s/ Stefan Kaluzny
Name: /s/ Stefan Kaluzny
Title: Managing Director
| Not mentioned |
538_nda-16 | 538_nda-16_0 | Q: Receiving Party shall destroy or return some Confidential Information upon the termination of Agreement.
Text: STRICTLY CONFIDENTIAL
January 27, 2012
Sycamore Partners Management, L.L.C.
9 West 57 Street, 31 Floorthst
New York, New York 10019
Attention: Stefan Kaluzny
Managing Director
Dear Mr. Kaluzny:
CONFIDENTIALITY AGREEMENT
This Confidentiality Agreement (this “Agreement”) is dated as of January 27, 2012 by and between Sycamore Partners Management, L.L.C., a Delaware limited liability company (the “Receiving Party”) and The Talbots, Inc., a Delaware corporation (together with its subsidiaries, the “Company”).
1. Confidential Information; Representatives. (a) The Receiving Party is considering a possible business combination transaction (whether negotiated directly with the Company’s Board of Directors or otherwise) with respect to the Company (the “Transaction”), and, in order to assist the Receiving Party in evaluating the possible Transaction, the Company is prepared to make available to the Receiving Party certain information concerning the business, operations, strategy and prospects of the Company (all such information, the “Confidential Information”). As a condition to the Confidential Information being furnished to the Receiving Party and the directors, officers, principals, partners, members, employees, agents, consultants, related investment funds, advisors, attorneys, accountants, affiliates, potential sources of capital and financing, and financial advisors (collectively, “Representatives”) of the Receiving Party, the Receiving Party agrees to treat the Confidential Information strictly in accordance with the provisions of this Agreement and to otherwise comply, and to cause its Representatives to comply, with all obligations hereinafter set forth.
(b) The term “Confidential Information” shall include, without limitation, any and all information concerning the Company and its business, operations, strategic initiatives, financing, employees, strategies or prospects that is furnished to the Receiving Party or its Representatives by or on behalf of the Company, whether furnished before or after the date of this Agreement, including, without limitation, any written or oral analyses, business or strategic plans, compilations, studies, data, reports, interpretations, projections, forecasts, records, notes, copies, excerpts, memoranda, documents or other materials (in whatever form maintained or conveyed, whether documentary, computerized, verbal form or otherwise), that contain or otherwise reflect Confidential Information concerning the Company or its business, operations, strategic
initiatives, financing, employees, strategies or prospects prepared by or on behalf of the Receiving Party, any of the Receiving Party’s Representatives, the Company or any Company Representatives (as defined below) or that otherwise reflect any conversations with Company Representatives involving or relating to the Confidential Information.
2. Excluded Information. The Confidential Information shall not include information that the Receiving Party can demonstrate (a) is or becomes available to the public other than as a result of acts by the Receiving Party or its Representatives in breach of the terms of this Agreement, (b) was in the Receiving Party’s possession prior to disclosure by the Company, provided that such information, to the Receiving Party’s knowledge, was not subject to another confidentiality agreement with the Company or another party, (c) has been independently developed by the Receiving Party without reference to, or the use of, any Confidential Information or (d) is disclosed to the Receiving Party by a third party, to the Receiving Party’s knowledge, not bound by any duty or obligation of confidentiality on a non-confidential basis.
3. Limitations on Use and Disclosure of Confidential Information. (a) The Receiving Party shall, and shall cause its Representatives to, use the Confidential Information solely for the purpose of evaluating a possible Transaction. The Receiving Party shall, and shall cause its Representatives to, keep the Confidential Information in confidence and shall not disclose any of the Confidential Information in any manner whatsoever; provided, however, that (i) the Receiving Party may make disclosure of information contained in the Confidential Information if required by applicable law, regulation or legal or regulatory process; provided, that the Receiving Party shall have first complied with the terms of Section 9 hereof, (ii) the Receiving Party may make disclosure of information contained in the Confidential Information to the extent that the Company gives its prior written consent, and (iii) any information contained in the Confidential Information may be disclosed to the Receiving Party’s Representatives who reasonably require access to such information for the purpose of evaluating a possible Transaction and who agree to keep such information in confidence to the same extent as described herein; provided, further, that the Receiving Party shall not make any disclosure of any Confidential Information to any potential sources of equity financing without the Company’s prior written consent. The Receiving Party shall be responsible for any breach of the terms of this Agreement by the Receiving Party or by any of its Representatives.
(b) The Receiving Party agrees that, for a period of eighteen months from the date of this Agreement, the Receiving Party shall not (and shall cause its affiliates, subject to Section 22 hereof, not to), directly or indirectly, (i) use the Confidential Information to divert or attempt to divert any business or customer of the Company or (ii) employ or solicit, or initiate contact for employment with, any (A) director, officer or other senior or key employee of the Company or (B) any other employee of the Company whom the Receiving Party meets during its evaluation of the possible Transaction or about whom the Receiving Party receives Confidential Information; provided, however, a general advertisement or other recruiting efforts not specifically targeting any such employees of the Company shall not be considered a solicitation or unauthorized hiring.
(c) If the Receiving Party discovers any unauthorized disclosure or use of any Confidential Information by it or its Representatives, the Receiving Party hereby covenants to promptly notify the Company in writing of any such unauthorized disclosure or use.
4. Non-Disclosure of Existence of Negotiations. Without the prior written consent of the Company or except as may be required by applicable law or regulation, the Receiving Party and its Representatives shall not disclose to any person that any discussions or negotiations are taking place between the parties concerning a possible Transaction, including the content, timing and status of such discussions or negotiations (the “Discussion Information”).
5. No Representations by the Company. The Company will have the exclusive authority to decide what Confidential Information (if any) is to be made available to the Receiving Party and its Representatives. Neither the Company nor any of its directors, officers, employees, agents, consultants, advisors, attorneys, accountants and affiliates (collectively, the “Company Representatives”) will be under any obligation to make any particular Confidential Information available to the Receiving Party or any of the Receiving Party’s Representatives or to supplement or update any Confidential Information previously furnished. Neither the Company nor any of the Company Representatives has made or is making any representation or warranty, express or implied, as to the accuracy or completeness of any Confidential Information, and neither the Company nor any of the Company Representatives will have any liability to the Receiving Party or to any of the Receiving Party’s Representatives relating to or resulting from the use of any Confidential Information or any inaccuracies or errors therein or omissions therefrom. Only those representations and warranties (if any) that are included in any final definitive written agreement that provides for the consummation of a negotiated transaction between the Receiving Party and the Company and is validly executed on behalf of the Receiving Party and the Company will have legal effect.
6. Standstill Agreement. In consideration of the Confidential Information being furnished to the Receiving Party pursuant to this Agreement, the Receiving Party agrees that, for a period of one year from the date of this Agreement (or, such shorter period agreed to by the Company with a third party who is provided access to the Confidential Information for the purpose of evaluating a possible Transaction, the “Standstill Period”), unless expressly requested by the Company or its Board of Directors (or any committee thereof) in writing, the Receiving Party shall not (and shall cause its affiliates not to and shall cause its and their respective Representatives acting at its and their respective behalf not to): (a) in any manner acting alone or in concert with others, acquire, agree to acquire or make any proposal to acquire, directly or indirectly, by means of purchase, merger, business combination or in any other manner, beneficial ownership of any securities of the Company, direct or indirect rights to acquire any securities of the Company (including any derivative securities with economic equivalents of ownership of any of such securities), any right to vote or to direct the voting of any securities of the Company or any assets of the Company, (b) make, or in any way participate in, directly or indirectly, any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote, or seek to advise or influence any person with respect to the voting of, any voting securities of the Company, (c) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) with respect to any voting securities of the Company, other than any group comprised solely of the Receiving Party and its affiliates, (d) otherwise act, alone or in concert with others, to seek to control, advise, change or influence the management, board of directors, governing instruments, policies or affairs of the Company, (e) make any public disclosure, or take any action that could require the Company to make any public disclosure, with respect to any of the matters set forth in this Agreement, other than the required amendment to the Receiving Party’s Schedule 13D filing as a result of the execution and delivery of this Agreement, (f) disclose any intention, plan or arrangement inconsistent with the foregoing or (g) have any discussions or enter into any arrangements (whether written or oral) with, or advise, assist or encourage any other persons in connection with any of the foregoing. The Receiving Party also agrees during such period not to request the Company or any of the Company Representatives, directly or indirectly, to amend or waive any provision of this Section 6 (including this sentence). Notwithstanding any provision in this Agreement to the contrary, (i) the Standstill Period shall terminate immediately if, after the date of this Agreement, (A) the Company enters into a definitive agreement with a third party to effectuate a sale of 50% or more of the consolidated assets of the Company or 50% or more of the Company’s outstanding equity securities, (B) the Company publicly announces the conclusion of its previously announced strategic review process without a definitive agreement to sell the Company, (C) the Company makes an assignment for the benefit of creditors or commences any proceeding under any bankruptcy reorganization, insolvency, dissolution or liquidation law of any jurisdiction or (D) any bankruptcy petition is filed or any such proceeding is commenced against the Company and either (1) the Company indicates its approval thereof, consent thereto or acquiescence therein, or (2) such petition application or proceeding is not dismissed within 30 days and (ii) the Standstill Period solely with respect to clause (b) of this Section 6 shall terminate ten days prior to the expiration of the applicable time period for stockholders to nominate directors for election at the Company’s 2012 annual stockholders meeting to be scheduled in accordance with Section 8 hereof (and, for the avoidance of doubt, the restrictions in clauses (c), (d), (e), (f) and (g) of this Section 6 shall not apply to the activities that were previously expressly prohibited by clause (b) of this Section 6 in the event the restrictions in clause (b) are terminated pursuant to this clause (ii)).
7. Return of Confidential Information. Promptly upon the written request of the Company, the Receiving Party will return all copies of the Confidential Information to the Company, and all notes, studies, reports, memoranda and other documents or materials prepared by the Receiving Party or its Representatives that contain or reflect any Confidential Information shall be destroyed. Notwithstanding the return to the Company or destruction of Confidential Information pursuant to this Section 7, the Receiving Party and its Representatives will continue to be bound by their confidentiality obligations and other obligations under this Agreement for the term hereof. Notwithstanding the foregoing, (a) the Receiving Party’s legal department and/or outside counsel may keep one copy of the Confidential Information (in electronic or paper form) and, with respect to the Receiving Party’s Representatives who are accounting firms, such firms may keep one copy of the Confidential Information, in each case, if required to comply with applicable law or regulation and (b) the Receiving Party and its Representatives may retain Confidential Information to the extent it is “backed-up” on its or their (as the case may be) electronic information management and communications systems or servers, is not available to an end user and cannot be expunged without considerable effort; provided, that any such information so retained pursuant to clauses (a) and (b) of this Section 7 shall be held in compliance with the terms of this Agreement for a period of eighteen months from the date hereof.
8. 2012 Annual Stockholders Meeting. The Company agrees (a) that the meeting date for its 2012 annual stockholders meeting (with respect to the Company’s fiscal year ended January 28, 2012) will be held no earlier than thirty-one days after the first anniversary of the Company’s 2011 annual stockholders meeting (with respect to the Company’s fiscal year ended January 29, 2011) and (b) to provide the Receiving Party a copy of the press release announcing the date of its 2012 annual meeting on the date such press release is publicly issued.
9. Subpoena or Court Order. In the event that the Receiving Party or anyone to whom it discloses the Confidential Information receives a request to disclose all or any part of the Confidential Information or Discussion Information under the terms of a subpoena or other order issued by a court of competent jurisdiction or by another governmental agency, the Receiving Party shall if permitted pursuant to applicable law (a) promptly notify the Company of the existence, terms and circumstances surrounding such a request, (b) consult with the Company on the advisability of taking steps to resist or narrow such request, (c) if disclosure of such Confidential Information or Discussion Information is required, furnish only such portion of the Confidential Information or Discussion Information as the Receiving Party is advised by its legal counsel is legally required to be disclosed and (d) if requested by the Company, cooperate with the Company in its efforts to obtain a protective order or other relief to prevent the disclosure of the Confidential Information or Discussion Information or other reliable assurance that confidential treatment will be accorded to such portion of the Confidential Information or Discussion Information, as applicable, that is required to be disclosed.
10. Definitive Agreement. Unless and until a definitive written agreement between the Receiving Party and the Company with respect to a Transaction has been executed and delivered, neither the Receiving Party nor the Company will be under
any legal obligation of any kind whatsoever with respect to such a Transaction by virtue of this or any other written or oral expression by either of them or their Representatives except, in the case of this Agreement, for the matters specifically agreed to herein.
11. Remedies. Each of the parties hereto acknowledges that in the event of any breach of the terms of this Agreement, the other party could not be made whole by monetary damages only. Accordingly, each of the parties hereto, in addition to any other remedy to which it may be entitled in law or in equity, shall be entitled to an injunction (which shall include a temporary restraining order) to prevent breaches of the terms of this Agreement.
12. Communications. Without the Company’s prior written consent, which may be withheld by the Company in its sole discretion, the Receiving Party shall not (and shall cause its Representatives not to) initiate, other than through the Company’s financial and legal advisors or such other persons, as designated by the Company in writing, any (a) communication concerning the Confidential Information, (b) requests for meetings with management of the Company in connection with the possible Transaction or other transaction between the parties or (c) communication relating to the business of the Company or the possible Transaction, in each case, with any officer, director or employee of the Company.
13. Securities Laws. The Receiving Party acknowledges that it is aware and that the Receiving Party and its Representatives have been advised that the United States securities laws prohibit any person having non-public material information about a company from purchasing or selling securities of that company or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities.
14. Entire Agreement; Amendments. This Agreement represents the entire understanding and agreement of the parties hereto with respect to the matters contained herein, and may be amended, modified or waived only by a separate writing executed by the Receiving Party and the Company expressly so amending, modifying or waiving this Agreement. This Agreement shall inure to the benefit of and be binding upon the parties and their respective successors and assigns.
15. No Waiver. No failure or delay by either party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder.
16. Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of New York, without regard to the laws of conflict of laws. Each of the parties hereto: (a) irrevocably and unconditionally consents and submits to the jurisdiction of the state and federal courts located in the State of New York for purposes of any action, suit or proceeding arising out of or relating to this Agreement; (b) agrees that service of any process, summons, notice or document by U.S. registered mail to the address set forth at the end of this Agreement shall be effective service of process for any action, suit or proceeding brought against such party; (c) irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of or relating to this Agreement in any state or federal court located in the State of New York; and (d) irrevocably and unconditionally waives the right to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any action, suit or proceeding arising out of or relating to this Agreement that is brought in any state or federal court located in the State of New York has been brought in an inconvenient forum.
17. Expenses. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines that a party has breached this Agreement, then such party shall be liable and pay to the non-breaching party the legal fees and expenses such non-breaching party has incurred in connection with such litigation, including any appeal therefrom.
18. Captions. The Captions contained in this Agreement are for convenience only and shall not affect the construction or interpretation of any provisions of this Agreement.
19. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same Agreement.
20. Severability. In the event any term of this Agreement is found by any court to be void or otherwise unenforceable, the remainder of this Agreement shall remain valid and enforceable as though such term were absent upon the date of its execution.
21. Notices. All notices and other communications required or permitted hereunder will be in writing and will be deemed to have been duly given when delivered in person or when dispatched by email or electronic facsimile transfer (with such facsimile confirmed in writing by mail simultaneously dispatched) to the Company at the address specified below:
The Talbots, Inc.
Attention: Chief Operating Officer
One Talbots Drive
Hingham, MA 02043
Telephone: 781-741-7600
Facsimile: 781-741-4927
with copies to:
The Talbots, Inc.
Attention: General Counsel
211 South Ridge St.
Rye Brook, NY 10573
Telephone: 914-934-8877
Facsimile: 914-934-9136
and
Dewey & LeBoeuf LLP
Attention: Morton A. Pierce, Esq.
Chang-Do Gong, Esq.
1301 Avenue of the Americas
New York, NY 10019
Telephone: 212-259-8000
Facsimile: 212-259-6333
22. Non-Private Equity Affiliates. Notwithstanding anything to the contrary provided elsewhere herein, none of the provisions of this Agreement shall in any way limit the ordinary course business services and activities of the Receiving Party and its affiliates; provided, that (a) such services and activities are distinct from the private equity business and (b) the Confidential Information is not made available to Representatives of the Receiving Party and its affiliates who are not involved in the private equity business or who are engaged in investments that are not private equity investments and such ordinary course business services and activities are otherwise conducted without any reference to, or use of, the Confidential Information. The Receiving Party further represents to the Company that the Receiving Party has implemented appropriate internal restrictions on the sharing of confidential information (including, without limitation, the implementation of ethical walls around certain affiliates, to comply with federal securities laws of the United States).
23. Termination. Except as otherwise specified herein, the obligations of the parties set forth in this Agreement shall terminate and be of no further force and effect eighteen months from the date hereof.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, THIS AGREEMENT is executed and delivered effective as of the date first written above.
THE TALBOTS, INC.
By /s/ Richard T. O’Connell, Jr.
Name: Richard T. O’Connell, Jr.
Title: Executive Vice President
SYCAMORE PARTNERS MANAGEMENT, L.L.C.
By /s/ Stefan Kaluzny
Name: /s/ Stefan Kaluzny
Title: Managing Director
| Not mentioned |
538_nda-15 | 538_nda-15_0 | Q: Agreement shall not grant Receiving Party any right to Confidential Information.
Text: STRICTLY CONFIDENTIAL
January 27, 2012
Sycamore Partners Management, L.L.C.
9 West 57 Street, 31 Floorthst
New York, New York 10019
Attention: Stefan Kaluzny
Managing Director
Dear Mr. Kaluzny:
CONFIDENTIALITY AGREEMENT
This Confidentiality Agreement (this “Agreement”) is dated as of January 27, 2012 by and between Sycamore Partners Management, L.L.C., a Delaware limited liability company (the “Receiving Party”) and The Talbots, Inc., a Delaware corporation (together with its subsidiaries, the “Company”).
1. Confidential Information; Representatives. (a) The Receiving Party is considering a possible business combination transaction (whether negotiated directly with the Company’s Board of Directors or otherwise) with respect to the Company (the “Transaction”), and, in order to assist the Receiving Party in evaluating the possible Transaction, the Company is prepared to make available to the Receiving Party certain information concerning the business, operations, strategy and prospects of the Company (all such information, the “Confidential Information”). As a condition to the Confidential Information being furnished to the Receiving Party and the directors, officers, principals, partners, members, employees, agents, consultants, related investment funds, advisors, attorneys, accountants, affiliates, potential sources of capital and financing, and financial advisors (collectively, “Representatives”) of the Receiving Party, the Receiving Party agrees to treat the Confidential Information strictly in accordance with the provisions of this Agreement and to otherwise comply, and to cause its Representatives to comply, with all obligations hereinafter set forth.
(b) The term “Confidential Information” shall include, without limitation, any and all information concerning the Company and its business, operations, strategic initiatives, financing, employees, strategies or prospects that is furnished to the Receiving Party or its Representatives by or on behalf of the Company, whether furnished before or after the date of this Agreement, including, without limitation, any written or oral analyses, business or strategic plans, compilations, studies, data, reports, interpretations, projections, forecasts, records, notes, copies, excerpts, memoranda, documents or other materials (in whatever form maintained or conveyed, whether documentary, computerized, verbal form or otherwise), that contain or otherwise reflect Confidential Information concerning the Company or its business, operations, strategic
initiatives, financing, employees, strategies or prospects prepared by or on behalf of the Receiving Party, any of the Receiving Party’s Representatives, the Company or any Company Representatives (as defined below) or that otherwise reflect any conversations with Company Representatives involving or relating to the Confidential Information.
2. Excluded Information. The Confidential Information shall not include information that the Receiving Party can demonstrate (a) is or becomes available to the public other than as a result of acts by the Receiving Party or its Representatives in breach of the terms of this Agreement, (b) was in the Receiving Party’s possession prior to disclosure by the Company, provided that such information, to the Receiving Party’s knowledge, was not subject to another confidentiality agreement with the Company or another party, (c) has been independently developed by the Receiving Party without reference to, or the use of, any Confidential Information or (d) is disclosed to the Receiving Party by a third party, to the Receiving Party’s knowledge, not bound by any duty or obligation of confidentiality on a non-confidential basis.
3. Limitations on Use and Disclosure of Confidential Information. (a) The Receiving Party shall, and shall cause its Representatives to, use the Confidential Information solely for the purpose of evaluating a possible Transaction. The Receiving Party shall, and shall cause its Representatives to, keep the Confidential Information in confidence and shall not disclose any of the Confidential Information in any manner whatsoever; provided, however, that (i) the Receiving Party may make disclosure of information contained in the Confidential Information if required by applicable law, regulation or legal or regulatory process; provided, that the Receiving Party shall have first complied with the terms of Section 9 hereof, (ii) the Receiving Party may make disclosure of information contained in the Confidential Information to the extent that the Company gives its prior written consent, and (iii) any information contained in the Confidential Information may be disclosed to the Receiving Party’s Representatives who reasonably require access to such information for the purpose of evaluating a possible Transaction and who agree to keep such information in confidence to the same extent as described herein; provided, further, that the Receiving Party shall not make any disclosure of any Confidential Information to any potential sources of equity financing without the Company’s prior written consent. The Receiving Party shall be responsible for any breach of the terms of this Agreement by the Receiving Party or by any of its Representatives.
(b) The Receiving Party agrees that, for a period of eighteen months from the date of this Agreement, the Receiving Party shall not (and shall cause its affiliates, subject to Section 22 hereof, not to), directly or indirectly, (i) use the Confidential Information to divert or attempt to divert any business or customer of the Company or (ii) employ or solicit, or initiate contact for employment with, any (A) director, officer or other senior or key employee of the Company or (B) any other employee of the Company whom the Receiving Party meets during its evaluation of the possible Transaction or about whom the Receiving Party receives Confidential Information; provided, however, a general advertisement or other recruiting efforts not specifically targeting any such employees of the Company shall not be considered a solicitation or unauthorized hiring.
(c) If the Receiving Party discovers any unauthorized disclosure or use of any Confidential Information by it or its Representatives, the Receiving Party hereby covenants to promptly notify the Company in writing of any such unauthorized disclosure or use.
4. Non-Disclosure of Existence of Negotiations. Without the prior written consent of the Company or except as may be required by applicable law or regulation, the Receiving Party and its Representatives shall not disclose to any person that any discussions or negotiations are taking place between the parties concerning a possible Transaction, including the content, timing and status of such discussions or negotiations (the “Discussion Information”).
5. No Representations by the Company. The Company will have the exclusive authority to decide what Confidential Information (if any) is to be made available to the Receiving Party and its Representatives. Neither the Company nor any of its directors, officers, employees, agents, consultants, advisors, attorneys, accountants and affiliates (collectively, the “Company Representatives”) will be under any obligation to make any particular Confidential Information available to the Receiving Party or any of the Receiving Party’s Representatives or to supplement or update any Confidential Information previously furnished. Neither the Company nor any of the Company Representatives has made or is making any representation or warranty, express or implied, as to the accuracy or completeness of any Confidential Information, and neither the Company nor any of the Company Representatives will have any liability to the Receiving Party or to any of the Receiving Party’s Representatives relating to or resulting from the use of any Confidential Information or any inaccuracies or errors therein or omissions therefrom. Only those representations and warranties (if any) that are included in any final definitive written agreement that provides for the consummation of a negotiated transaction between the Receiving Party and the Company and is validly executed on behalf of the Receiving Party and the Company will have legal effect.
6. Standstill Agreement. In consideration of the Confidential Information being furnished to the Receiving Party pursuant to this Agreement, the Receiving Party agrees that, for a period of one year from the date of this Agreement (or, such shorter period agreed to by the Company with a third party who is provided access to the Confidential Information for the purpose of evaluating a possible Transaction, the “Standstill Period”), unless expressly requested by the Company or its Board of Directors (or any committee thereof) in writing, the Receiving Party shall not (and shall cause its affiliates not to and shall cause its and their respective Representatives acting at its and their respective behalf not to): (a) in any manner acting alone or in concert with others, acquire, agree to acquire or make any proposal to acquire, directly or indirectly, by means of purchase, merger, business combination or in any other manner, beneficial ownership of any securities of the Company, direct or indirect rights to acquire any securities of the Company (including any derivative securities with economic equivalents of ownership of any of such securities), any right to vote or to direct the voting of any securities of the Company or any assets of the Company, (b) make, or in any way participate in, directly or indirectly, any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote, or seek to advise or influence any person with respect to the voting of, any voting securities of the Company, (c) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) with respect to any voting securities of the Company, other than any group comprised solely of the Receiving Party and its affiliates, (d) otherwise act, alone or in concert with others, to seek to control, advise, change or influence the management, board of directors, governing instruments, policies or affairs of the Company, (e) make any public disclosure, or take any action that could require the Company to make any public disclosure, with respect to any of the matters set forth in this Agreement, other than the required amendment to the Receiving Party’s Schedule 13D filing as a result of the execution and delivery of this Agreement, (f) disclose any intention, plan or arrangement inconsistent with the foregoing or (g) have any discussions or enter into any arrangements (whether written or oral) with, or advise, assist or encourage any other persons in connection with any of the foregoing. The Receiving Party also agrees during such period not to request the Company or any of the Company Representatives, directly or indirectly, to amend or waive any provision of this Section 6 (including this sentence). Notwithstanding any provision in this Agreement to the contrary, (i) the Standstill Period shall terminate immediately if, after the date of this Agreement, (A) the Company enters into a definitive agreement with a third party to effectuate a sale of 50% or more of the consolidated assets of the Company or 50% or more of the Company’s outstanding equity securities, (B) the Company publicly announces the conclusion of its previously announced strategic review process without a definitive agreement to sell the Company, (C) the Company makes an assignment for the benefit of creditors or commences any proceeding under any bankruptcy reorganization, insolvency, dissolution or liquidation law of any jurisdiction or (D) any bankruptcy petition is filed or any such proceeding is commenced against the Company and either (1) the Company indicates its approval thereof, consent thereto or acquiescence therein, or (2) such petition application or proceeding is not dismissed within 30 days and (ii) the Standstill Period solely with respect to clause (b) of this Section 6 shall terminate ten days prior to the expiration of the applicable time period for stockholders to nominate directors for election at the Company’s 2012 annual stockholders meeting to be scheduled in accordance with Section 8 hereof (and, for the avoidance of doubt, the restrictions in clauses (c), (d), (e), (f) and (g) of this Section 6 shall not apply to the activities that were previously expressly prohibited by clause (b) of this Section 6 in the event the restrictions in clause (b) are terminated pursuant to this clause (ii)).
7. Return of Confidential Information. Promptly upon the written request of the Company, the Receiving Party will return all copies of the Confidential Information to the Company, and all notes, studies, reports, memoranda and other documents or materials prepared by the Receiving Party or its Representatives that contain or reflect any Confidential Information shall be destroyed. Notwithstanding the return to the Company or destruction of Confidential Information pursuant to this Section 7, the Receiving Party and its Representatives will continue to be bound by their confidentiality obligations and other obligations under this Agreement for the term hereof. Notwithstanding the foregoing, (a) the Receiving Party’s legal department and/or outside counsel may keep one copy of the Confidential Information (in electronic or paper form) and, with respect to the Receiving Party’s Representatives who are accounting firms, such firms may keep one copy of the Confidential Information, in each case, if required to comply with applicable law or regulation and (b) the Receiving Party and its Representatives may retain Confidential Information to the extent it is “backed-up” on its or their (as the case may be) electronic information management and communications systems or servers, is not available to an end user and cannot be expunged without considerable effort; provided, that any such information so retained pursuant to clauses (a) and (b) of this Section 7 shall be held in compliance with the terms of this Agreement for a period of eighteen months from the date hereof.
8. 2012 Annual Stockholders Meeting. The Company agrees (a) that the meeting date for its 2012 annual stockholders meeting (with respect to the Company’s fiscal year ended January 28, 2012) will be held no earlier than thirty-one days after the first anniversary of the Company’s 2011 annual stockholders meeting (with respect to the Company’s fiscal year ended January 29, 2011) and (b) to provide the Receiving Party a copy of the press release announcing the date of its 2012 annual meeting on the date such press release is publicly issued.
9. Subpoena or Court Order. In the event that the Receiving Party or anyone to whom it discloses the Confidential Information receives a request to disclose all or any part of the Confidential Information or Discussion Information under the terms of a subpoena or other order issued by a court of competent jurisdiction or by another governmental agency, the Receiving Party shall if permitted pursuant to applicable law (a) promptly notify the Company of the existence, terms and circumstances surrounding such a request, (b) consult with the Company on the advisability of taking steps to resist or narrow such request, (c) if disclosure of such Confidential Information or Discussion Information is required, furnish only such portion of the Confidential Information or Discussion Information as the Receiving Party is advised by its legal counsel is legally required to be disclosed and (d) if requested by the Company, cooperate with the Company in its efforts to obtain a protective order or other relief to prevent the disclosure of the Confidential Information or Discussion Information or other reliable assurance that confidential treatment will be accorded to such portion of the Confidential Information or Discussion Information, as applicable, that is required to be disclosed.
10. Definitive Agreement. Unless and until a definitive written agreement between the Receiving Party and the Company with respect to a Transaction has been executed and delivered, neither the Receiving Party nor the Company will be under
any legal obligation of any kind whatsoever with respect to such a Transaction by virtue of this or any other written or oral expression by either of them or their Representatives except, in the case of this Agreement, for the matters specifically agreed to herein.
11. Remedies. Each of the parties hereto acknowledges that in the event of any breach of the terms of this Agreement, the other party could not be made whole by monetary damages only. Accordingly, each of the parties hereto, in addition to any other remedy to which it may be entitled in law or in equity, shall be entitled to an injunction (which shall include a temporary restraining order) to prevent breaches of the terms of this Agreement.
12. Communications. Without the Company’s prior written consent, which may be withheld by the Company in its sole discretion, the Receiving Party shall not (and shall cause its Representatives not to) initiate, other than through the Company’s financial and legal advisors or such other persons, as designated by the Company in writing, any (a) communication concerning the Confidential Information, (b) requests for meetings with management of the Company in connection with the possible Transaction or other transaction between the parties or (c) communication relating to the business of the Company or the possible Transaction, in each case, with any officer, director or employee of the Company.
13. Securities Laws. The Receiving Party acknowledges that it is aware and that the Receiving Party and its Representatives have been advised that the United States securities laws prohibit any person having non-public material information about a company from purchasing or selling securities of that company or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities.
14. Entire Agreement; Amendments. This Agreement represents the entire understanding and agreement of the parties hereto with respect to the matters contained herein, and may be amended, modified or waived only by a separate writing executed by the Receiving Party and the Company expressly so amending, modifying or waiving this Agreement. This Agreement shall inure to the benefit of and be binding upon the parties and their respective successors and assigns.
15. No Waiver. No failure or delay by either party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder.
16. Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of New York, without regard to the laws of conflict of laws. Each of the parties hereto: (a) irrevocably and unconditionally consents and submits to the jurisdiction of the state and federal courts located in the State of New York for purposes of any action, suit or proceeding arising out of or relating to this Agreement; (b) agrees that service of any process, summons, notice or document by U.S. registered mail to the address set forth at the end of this Agreement shall be effective service of process for any action, suit or proceeding brought against such party; (c) irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of or relating to this Agreement in any state or federal court located in the State of New York; and (d) irrevocably and unconditionally waives the right to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any action, suit or proceeding arising out of or relating to this Agreement that is brought in any state or federal court located in the State of New York has been brought in an inconvenient forum.
17. Expenses. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines that a party has breached this Agreement, then such party shall be liable and pay to the non-breaching party the legal fees and expenses such non-breaching party has incurred in connection with such litigation, including any appeal therefrom.
18. Captions. The Captions contained in this Agreement are for convenience only and shall not affect the construction or interpretation of any provisions of this Agreement.
19. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same Agreement.
20. Severability. In the event any term of this Agreement is found by any court to be void or otherwise unenforceable, the remainder of this Agreement shall remain valid and enforceable as though such term were absent upon the date of its execution.
21. Notices. All notices and other communications required or permitted hereunder will be in writing and will be deemed to have been duly given when delivered in person or when dispatched by email or electronic facsimile transfer (with such facsimile confirmed in writing by mail simultaneously dispatched) to the Company at the address specified below:
The Talbots, Inc.
Attention: Chief Operating Officer
One Talbots Drive
Hingham, MA 02043
Telephone: 781-741-7600
Facsimile: 781-741-4927
with copies to:
The Talbots, Inc.
Attention: General Counsel
211 South Ridge St.
Rye Brook, NY 10573
Telephone: 914-934-8877
Facsimile: 914-934-9136
and
Dewey & LeBoeuf LLP
Attention: Morton A. Pierce, Esq.
Chang-Do Gong, Esq.
1301 Avenue of the Americas
New York, NY 10019
Telephone: 212-259-8000
Facsimile: 212-259-6333
22. Non-Private Equity Affiliates. Notwithstanding anything to the contrary provided elsewhere herein, none of the provisions of this Agreement shall in any way limit the ordinary course business services and activities of the Receiving Party and its affiliates; provided, that (a) such services and activities are distinct from the private equity business and (b) the Confidential Information is not made available to Representatives of the Receiving Party and its affiliates who are not involved in the private equity business or who are engaged in investments that are not private equity investments and such ordinary course business services and activities are otherwise conducted without any reference to, or use of, the Confidential Information. The Receiving Party further represents to the Company that the Receiving Party has implemented appropriate internal restrictions on the sharing of confidential information (including, without limitation, the implementation of ethical walls around certain affiliates, to comply with federal securities laws of the United States).
23. Termination. Except as otherwise specified herein, the obligations of the parties set forth in this Agreement shall terminate and be of no further force and effect eighteen months from the date hereof.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, THIS AGREEMENT is executed and delivered effective as of the date first written above.
THE TALBOTS, INC.
By /s/ Richard T. O’Connell, Jr.
Name: Richard T. O’Connell, Jr.
Title: Executive Vice President
SYCAMORE PARTNERS MANAGEMENT, L.L.C.
By /s/ Stefan Kaluzny
Name: /s/ Stefan Kaluzny
Title: Managing Director
| Not mentioned |
538_nda-10 | 538_nda-10_0 | Q: Receiving Party shall not disclose the fact that Agreement was agreed or negotiated.
Text: STRICTLY CONFIDENTIAL
January 27, 2012
Sycamore Partners Management, L.L.C.
9 West 57 Street, 31 Floorthst
New York, New York 10019
Attention: Stefan Kaluzny
Managing Director
Dear Mr. Kaluzny:
CONFIDENTIALITY AGREEMENT
This Confidentiality Agreement (this “Agreement”) is dated as of January 27, 2012 by and between Sycamore Partners Management, L.L.C., a Delaware limited liability company (the “Receiving Party”) and The Talbots, Inc., a Delaware corporation (together with its subsidiaries, the “Company”).
1. Confidential Information; Representatives. (a) The Receiving Party is considering a possible business combination transaction (whether negotiated directly with the Company’s Board of Directors or otherwise) with respect to the Company (the “Transaction”), and, in order to assist the Receiving Party in evaluating the possible Transaction, the Company is prepared to make available to the Receiving Party certain information concerning the business, operations, strategy and prospects of the Company (all such information, the “Confidential Information”). As a condition to the Confidential Information being furnished to the Receiving Party and the directors, officers, principals, partners, members, employees, agents, consultants, related investment funds, advisors, attorneys, accountants, affiliates, potential sources of capital and financing, and financial advisors (collectively, “Representatives”) of the Receiving Party, the Receiving Party agrees to treat the Confidential Information strictly in accordance with the provisions of this Agreement and to otherwise comply, and to cause its Representatives to comply, with all obligations hereinafter set forth.
(b) The term “Confidential Information” shall include, without limitation, any and all information concerning the Company and its business, operations, strategic initiatives, financing, employees, strategies or prospects that is furnished to the Receiving Party or its Representatives by or on behalf of the Company, whether furnished before or after the date of this Agreement, including, without limitation, any written or oral analyses, business or strategic plans, compilations, studies, data, reports, interpretations, projections, forecasts, records, notes, copies, excerpts, memoranda, documents or other materials (in whatever form maintained or conveyed, whether documentary, computerized, verbal form or otherwise), that contain or otherwise reflect Confidential Information concerning the Company or its business, operations, strategic
initiatives, financing, employees, strategies or prospects prepared by or on behalf of the Receiving Party, any of the Receiving Party’s Representatives, the Company or any Company Representatives (as defined below) or that otherwise reflect any conversations with Company Representatives involving or relating to the Confidential Information.
2. Excluded Information. The Confidential Information shall not include information that the Receiving Party can demonstrate (a) is or becomes available to the public other than as a result of acts by the Receiving Party or its Representatives in breach of the terms of this Agreement, (b) was in the Receiving Party’s possession prior to disclosure by the Company, provided that such information, to the Receiving Party’s knowledge, was not subject to another confidentiality agreement with the Company or another party, (c) has been independently developed by the Receiving Party without reference to, or the use of, any Confidential Information or (d) is disclosed to the Receiving Party by a third party, to the Receiving Party’s knowledge, not bound by any duty or obligation of confidentiality on a non-confidential basis.
3. Limitations on Use and Disclosure of Confidential Information. (a) The Receiving Party shall, and shall cause its Representatives to, use the Confidential Information solely for the purpose of evaluating a possible Transaction. The Receiving Party shall, and shall cause its Representatives to, keep the Confidential Information in confidence and shall not disclose any of the Confidential Information in any manner whatsoever; provided, however, that (i) the Receiving Party may make disclosure of information contained in the Confidential Information if required by applicable law, regulation or legal or regulatory process; provided, that the Receiving Party shall have first complied with the terms of Section 9 hereof, (ii) the Receiving Party may make disclosure of information contained in the Confidential Information to the extent that the Company gives its prior written consent, and (iii) any information contained in the Confidential Information may be disclosed to the Receiving Party’s Representatives who reasonably require access to such information for the purpose of evaluating a possible Transaction and who agree to keep such information in confidence to the same extent as described herein; provided, further, that the Receiving Party shall not make any disclosure of any Confidential Information to any potential sources of equity financing without the Company’s prior written consent. The Receiving Party shall be responsible for any breach of the terms of this Agreement by the Receiving Party or by any of its Representatives.
(b) The Receiving Party agrees that, for a period of eighteen months from the date of this Agreement, the Receiving Party shall not (and shall cause its affiliates, subject to Section 22 hereof, not to), directly or indirectly, (i) use the Confidential Information to divert or attempt to divert any business or customer of the Company or (ii) employ or solicit, or initiate contact for employment with, any (A) director, officer or other senior or key employee of the Company or (B) any other employee of the Company whom the Receiving Party meets during its evaluation of the possible Transaction or about whom the Receiving Party receives Confidential Information; provided, however, a general advertisement or other recruiting efforts not specifically targeting any such employees of the Company shall not be considered a solicitation or unauthorized hiring.
(c) If the Receiving Party discovers any unauthorized disclosure or use of any Confidential Information by it or its Representatives, the Receiving Party hereby covenants to promptly notify the Company in writing of any such unauthorized disclosure or use.
4. Non-Disclosure of Existence of Negotiations. Without the prior written consent of the Company or except as may be required by applicable law or regulation, the Receiving Party and its Representatives shall not disclose to any person that any discussions or negotiations are taking place between the parties concerning a possible Transaction, including the content, timing and status of such discussions or negotiations (the “Discussion Information”).
5. No Representations by the Company. The Company will have the exclusive authority to decide what Confidential Information (if any) is to be made available to the Receiving Party and its Representatives. Neither the Company nor any of its directors, officers, employees, agents, consultants, advisors, attorneys, accountants and affiliates (collectively, the “Company Representatives”) will be under any obligation to make any particular Confidential Information available to the Receiving Party or any of the Receiving Party’s Representatives or to supplement or update any Confidential Information previously furnished. Neither the Company nor any of the Company Representatives has made or is making any representation or warranty, express or implied, as to the accuracy or completeness of any Confidential Information, and neither the Company nor any of the Company Representatives will have any liability to the Receiving Party or to any of the Receiving Party’s Representatives relating to or resulting from the use of any Confidential Information or any inaccuracies or errors therein or omissions therefrom. Only those representations and warranties (if any) that are included in any final definitive written agreement that provides for the consummation of a negotiated transaction between the Receiving Party and the Company and is validly executed on behalf of the Receiving Party and the Company will have legal effect.
6. Standstill Agreement. In consideration of the Confidential Information being furnished to the Receiving Party pursuant to this Agreement, the Receiving Party agrees that, for a period of one year from the date of this Agreement (or, such shorter period agreed to by the Company with a third party who is provided access to the Confidential Information for the purpose of evaluating a possible Transaction, the “Standstill Period”), unless expressly requested by the Company or its Board of Directors (or any committee thereof) in writing, the Receiving Party shall not (and shall cause its affiliates not to and shall cause its and their respective Representatives acting at its and their respective behalf not to): (a) in any manner acting alone or in concert with others, acquire, agree to acquire or make any proposal to acquire, directly or indirectly, by means of purchase, merger, business combination or in any other manner, beneficial ownership of any securities of the Company, direct or indirect rights to acquire any securities of the Company (including any derivative securities with economic equivalents of ownership of any of such securities), any right to vote or to direct the voting of any securities of the Company or any assets of the Company, (b) make, or in any way participate in, directly or indirectly, any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote, or seek to advise or influence any person with respect to the voting of, any voting securities of the Company, (c) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) with respect to any voting securities of the Company, other than any group comprised solely of the Receiving Party and its affiliates, (d) otherwise act, alone or in concert with others, to seek to control, advise, change or influence the management, board of directors, governing instruments, policies or affairs of the Company, (e) make any public disclosure, or take any action that could require the Company to make any public disclosure, with respect to any of the matters set forth in this Agreement, other than the required amendment to the Receiving Party’s Schedule 13D filing as a result of the execution and delivery of this Agreement, (f) disclose any intention, plan or arrangement inconsistent with the foregoing or (g) have any discussions or enter into any arrangements (whether written or oral) with, or advise, assist or encourage any other persons in connection with any of the foregoing. The Receiving Party also agrees during such period not to request the Company or any of the Company Representatives, directly or indirectly, to amend or waive any provision of this Section 6 (including this sentence). Notwithstanding any provision in this Agreement to the contrary, (i) the Standstill Period shall terminate immediately if, after the date of this Agreement, (A) the Company enters into a definitive agreement with a third party to effectuate a sale of 50% or more of the consolidated assets of the Company or 50% or more of the Company’s outstanding equity securities, (B) the Company publicly announces the conclusion of its previously announced strategic review process without a definitive agreement to sell the Company, (C) the Company makes an assignment for the benefit of creditors or commences any proceeding under any bankruptcy reorganization, insolvency, dissolution or liquidation law of any jurisdiction or (D) any bankruptcy petition is filed or any such proceeding is commenced against the Company and either (1) the Company indicates its approval thereof, consent thereto or acquiescence therein, or (2) such petition application or proceeding is not dismissed within 30 days and (ii) the Standstill Period solely with respect to clause (b) of this Section 6 shall terminate ten days prior to the expiration of the applicable time period for stockholders to nominate directors for election at the Company’s 2012 annual stockholders meeting to be scheduled in accordance with Section 8 hereof (and, for the avoidance of doubt, the restrictions in clauses (c), (d), (e), (f) and (g) of this Section 6 shall not apply to the activities that were previously expressly prohibited by clause (b) of this Section 6 in the event the restrictions in clause (b) are terminated pursuant to this clause (ii)).
7. Return of Confidential Information. Promptly upon the written request of the Company, the Receiving Party will return all copies of the Confidential Information to the Company, and all notes, studies, reports, memoranda and other documents or materials prepared by the Receiving Party or its Representatives that contain or reflect any Confidential Information shall be destroyed. Notwithstanding the return to the Company or destruction of Confidential Information pursuant to this Section 7, the Receiving Party and its Representatives will continue to be bound by their confidentiality obligations and other obligations under this Agreement for the term hereof. Notwithstanding the foregoing, (a) the Receiving Party’s legal department and/or outside counsel may keep one copy of the Confidential Information (in electronic or paper form) and, with respect to the Receiving Party’s Representatives who are accounting firms, such firms may keep one copy of the Confidential Information, in each case, if required to comply with applicable law or regulation and (b) the Receiving Party and its Representatives may retain Confidential Information to the extent it is “backed-up” on its or their (as the case may be) electronic information management and communications systems or servers, is not available to an end user and cannot be expunged without considerable effort; provided, that any such information so retained pursuant to clauses (a) and (b) of this Section 7 shall be held in compliance with the terms of this Agreement for a period of eighteen months from the date hereof.
8. 2012 Annual Stockholders Meeting. The Company agrees (a) that the meeting date for its 2012 annual stockholders meeting (with respect to the Company’s fiscal year ended January 28, 2012) will be held no earlier than thirty-one days after the first anniversary of the Company’s 2011 annual stockholders meeting (with respect to the Company’s fiscal year ended January 29, 2011) and (b) to provide the Receiving Party a copy of the press release announcing the date of its 2012 annual meeting on the date such press release is publicly issued.
9. Subpoena or Court Order. In the event that the Receiving Party or anyone to whom it discloses the Confidential Information receives a request to disclose all or any part of the Confidential Information or Discussion Information under the terms of a subpoena or other order issued by a court of competent jurisdiction or by another governmental agency, the Receiving Party shall if permitted pursuant to applicable law (a) promptly notify the Company of the existence, terms and circumstances surrounding such a request, (b) consult with the Company on the advisability of taking steps to resist or narrow such request, (c) if disclosure of such Confidential Information or Discussion Information is required, furnish only such portion of the Confidential Information or Discussion Information as the Receiving Party is advised by its legal counsel is legally required to be disclosed and (d) if requested by the Company, cooperate with the Company in its efforts to obtain a protective order or other relief to prevent the disclosure of the Confidential Information or Discussion Information or other reliable assurance that confidential treatment will be accorded to such portion of the Confidential Information or Discussion Information, as applicable, that is required to be disclosed.
10. Definitive Agreement. Unless and until a definitive written agreement between the Receiving Party and the Company with respect to a Transaction has been executed and delivered, neither the Receiving Party nor the Company will be under
any legal obligation of any kind whatsoever with respect to such a Transaction by virtue of this or any other written or oral expression by either of them or their Representatives except, in the case of this Agreement, for the matters specifically agreed to herein.
11. Remedies. Each of the parties hereto acknowledges that in the event of any breach of the terms of this Agreement, the other party could not be made whole by monetary damages only. Accordingly, each of the parties hereto, in addition to any other remedy to which it may be entitled in law or in equity, shall be entitled to an injunction (which shall include a temporary restraining order) to prevent breaches of the terms of this Agreement.
12. Communications. Without the Company’s prior written consent, which may be withheld by the Company in its sole discretion, the Receiving Party shall not (and shall cause its Representatives not to) initiate, other than through the Company’s financial and legal advisors or such other persons, as designated by the Company in writing, any (a) communication concerning the Confidential Information, (b) requests for meetings with management of the Company in connection with the possible Transaction or other transaction between the parties or (c) communication relating to the business of the Company or the possible Transaction, in each case, with any officer, director or employee of the Company.
13. Securities Laws. The Receiving Party acknowledges that it is aware and that the Receiving Party and its Representatives have been advised that the United States securities laws prohibit any person having non-public material information about a company from purchasing or selling securities of that company or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities.
14. Entire Agreement; Amendments. This Agreement represents the entire understanding and agreement of the parties hereto with respect to the matters contained herein, and may be amended, modified or waived only by a separate writing executed by the Receiving Party and the Company expressly so amending, modifying or waiving this Agreement. This Agreement shall inure to the benefit of and be binding upon the parties and their respective successors and assigns.
15. No Waiver. No failure or delay by either party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder.
16. Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of New York, without regard to the laws of conflict of laws. Each of the parties hereto: (a) irrevocably and unconditionally consents and submits to the jurisdiction of the state and federal courts located in the State of New York for purposes of any action, suit or proceeding arising out of or relating to this Agreement; (b) agrees that service of any process, summons, notice or document by U.S. registered mail to the address set forth at the end of this Agreement shall be effective service of process for any action, suit or proceeding brought against such party; (c) irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of or relating to this Agreement in any state or federal court located in the State of New York; and (d) irrevocably and unconditionally waives the right to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any action, suit or proceeding arising out of or relating to this Agreement that is brought in any state or federal court located in the State of New York has been brought in an inconvenient forum.
17. Expenses. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines that a party has breached this Agreement, then such party shall be liable and pay to the non-breaching party the legal fees and expenses such non-breaching party has incurred in connection with such litigation, including any appeal therefrom.
18. Captions. The Captions contained in this Agreement are for convenience only and shall not affect the construction or interpretation of any provisions of this Agreement.
19. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same Agreement.
20. Severability. In the event any term of this Agreement is found by any court to be void or otherwise unenforceable, the remainder of this Agreement shall remain valid and enforceable as though such term were absent upon the date of its execution.
21. Notices. All notices and other communications required or permitted hereunder will be in writing and will be deemed to have been duly given when delivered in person or when dispatched by email or electronic facsimile transfer (with such facsimile confirmed in writing by mail simultaneously dispatched) to the Company at the address specified below:
The Talbots, Inc.
Attention: Chief Operating Officer
One Talbots Drive
Hingham, MA 02043
Telephone: 781-741-7600
Facsimile: 781-741-4927
with copies to:
The Talbots, Inc.
Attention: General Counsel
211 South Ridge St.
Rye Brook, NY 10573
Telephone: 914-934-8877
Facsimile: 914-934-9136
and
Dewey & LeBoeuf LLP
Attention: Morton A. Pierce, Esq.
Chang-Do Gong, Esq.
1301 Avenue of the Americas
New York, NY 10019
Telephone: 212-259-8000
Facsimile: 212-259-6333
22. Non-Private Equity Affiliates. Notwithstanding anything to the contrary provided elsewhere herein, none of the provisions of this Agreement shall in any way limit the ordinary course business services and activities of the Receiving Party and its affiliates; provided, that (a) such services and activities are distinct from the private equity business and (b) the Confidential Information is not made available to Representatives of the Receiving Party and its affiliates who are not involved in the private equity business or who are engaged in investments that are not private equity investments and such ordinary course business services and activities are otherwise conducted without any reference to, or use of, the Confidential Information. The Receiving Party further represents to the Company that the Receiving Party has implemented appropriate internal restrictions on the sharing of confidential information (including, without limitation, the implementation of ethical walls around certain affiliates, to comply with federal securities laws of the United States).
23. Termination. Except as otherwise specified herein, the obligations of the parties set forth in this Agreement shall terminate and be of no further force and effect eighteen months from the date hereof.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, THIS AGREEMENT is executed and delivered effective as of the date first written above.
THE TALBOTS, INC.
By /s/ Richard T. O’Connell, Jr.
Name: Richard T. O’Connell, Jr.
Title: Executive Vice President
SYCAMORE PARTNERS MANAGEMENT, L.L.C.
By /s/ Stefan Kaluzny
Name: /s/ Stefan Kaluzny
Title: Managing Director
| Entailment |
538_nda-2 | 538_nda-2_0 | Q: Confidential Information shall only include technical information.
Text: STRICTLY CONFIDENTIAL
January 27, 2012
Sycamore Partners Management, L.L.C.
9 West 57 Street, 31 Floorthst
New York, New York 10019
Attention: Stefan Kaluzny
Managing Director
Dear Mr. Kaluzny:
CONFIDENTIALITY AGREEMENT
This Confidentiality Agreement (this “Agreement”) is dated as of January 27, 2012 by and between Sycamore Partners Management, L.L.C., a Delaware limited liability company (the “Receiving Party”) and The Talbots, Inc., a Delaware corporation (together with its subsidiaries, the “Company”).
1. Confidential Information; Representatives. (a) The Receiving Party is considering a possible business combination transaction (whether negotiated directly with the Company’s Board of Directors or otherwise) with respect to the Company (the “Transaction”), and, in order to assist the Receiving Party in evaluating the possible Transaction, the Company is prepared to make available to the Receiving Party certain information concerning the business, operations, strategy and prospects of the Company (all such information, the “Confidential Information”). As a condition to the Confidential Information being furnished to the Receiving Party and the directors, officers, principals, partners, members, employees, agents, consultants, related investment funds, advisors, attorneys, accountants, affiliates, potential sources of capital and financing, and financial advisors (collectively, “Representatives”) of the Receiving Party, the Receiving Party agrees to treat the Confidential Information strictly in accordance with the provisions of this Agreement and to otherwise comply, and to cause its Representatives to comply, with all obligations hereinafter set forth.
(b) The term “Confidential Information” shall include, without limitation, any and all information concerning the Company and its business, operations, strategic initiatives, financing, employees, strategies or prospects that is furnished to the Receiving Party or its Representatives by or on behalf of the Company, whether furnished before or after the date of this Agreement, including, without limitation, any written or oral analyses, business or strategic plans, compilations, studies, data, reports, interpretations, projections, forecasts, records, notes, copies, excerpts, memoranda, documents or other materials (in whatever form maintained or conveyed, whether documentary, computerized, verbal form or otherwise), that contain or otherwise reflect Confidential Information concerning the Company or its business, operations, strategic
initiatives, financing, employees, strategies or prospects prepared by or on behalf of the Receiving Party, any of the Receiving Party’s Representatives, the Company or any Company Representatives (as defined below) or that otherwise reflect any conversations with Company Representatives involving or relating to the Confidential Information.
2. Excluded Information. The Confidential Information shall not include information that the Receiving Party can demonstrate (a) is or becomes available to the public other than as a result of acts by the Receiving Party or its Representatives in breach of the terms of this Agreement, (b) was in the Receiving Party’s possession prior to disclosure by the Company, provided that such information, to the Receiving Party’s knowledge, was not subject to another confidentiality agreement with the Company or another party, (c) has been independently developed by the Receiving Party without reference to, or the use of, any Confidential Information or (d) is disclosed to the Receiving Party by a third party, to the Receiving Party’s knowledge, not bound by any duty or obligation of confidentiality on a non-confidential basis.
3. Limitations on Use and Disclosure of Confidential Information. (a) The Receiving Party shall, and shall cause its Representatives to, use the Confidential Information solely for the purpose of evaluating a possible Transaction. The Receiving Party shall, and shall cause its Representatives to, keep the Confidential Information in confidence and shall not disclose any of the Confidential Information in any manner whatsoever; provided, however, that (i) the Receiving Party may make disclosure of information contained in the Confidential Information if required by applicable law, regulation or legal or regulatory process; provided, that the Receiving Party shall have first complied with the terms of Section 9 hereof, (ii) the Receiving Party may make disclosure of information contained in the Confidential Information to the extent that the Company gives its prior written consent, and (iii) any information contained in the Confidential Information may be disclosed to the Receiving Party’s Representatives who reasonably require access to such information for the purpose of evaluating a possible Transaction and who agree to keep such information in confidence to the same extent as described herein; provided, further, that the Receiving Party shall not make any disclosure of any Confidential Information to any potential sources of equity financing without the Company’s prior written consent. The Receiving Party shall be responsible for any breach of the terms of this Agreement by the Receiving Party or by any of its Representatives.
(b) The Receiving Party agrees that, for a period of eighteen months from the date of this Agreement, the Receiving Party shall not (and shall cause its affiliates, subject to Section 22 hereof, not to), directly or indirectly, (i) use the Confidential Information to divert or attempt to divert any business or customer of the Company or (ii) employ or solicit, or initiate contact for employment with, any (A) director, officer or other senior or key employee of the Company or (B) any other employee of the Company whom the Receiving Party meets during its evaluation of the possible Transaction or about whom the Receiving Party receives Confidential Information; provided, however, a general advertisement or other recruiting efforts not specifically targeting any such employees of the Company shall not be considered a solicitation or unauthorized hiring.
(c) If the Receiving Party discovers any unauthorized disclosure or use of any Confidential Information by it or its Representatives, the Receiving Party hereby covenants to promptly notify the Company in writing of any such unauthorized disclosure or use.
4. Non-Disclosure of Existence of Negotiations. Without the prior written consent of the Company or except as may be required by applicable law or regulation, the Receiving Party and its Representatives shall not disclose to any person that any discussions or negotiations are taking place between the parties concerning a possible Transaction, including the content, timing and status of such discussions or negotiations (the “Discussion Information”).
5. No Representations by the Company. The Company will have the exclusive authority to decide what Confidential Information (if any) is to be made available to the Receiving Party and its Representatives. Neither the Company nor any of its directors, officers, employees, agents, consultants, advisors, attorneys, accountants and affiliates (collectively, the “Company Representatives”) will be under any obligation to make any particular Confidential Information available to the Receiving Party or any of the Receiving Party’s Representatives or to supplement or update any Confidential Information previously furnished. Neither the Company nor any of the Company Representatives has made or is making any representation or warranty, express or implied, as to the accuracy or completeness of any Confidential Information, and neither the Company nor any of the Company Representatives will have any liability to the Receiving Party or to any of the Receiving Party’s Representatives relating to or resulting from the use of any Confidential Information or any inaccuracies or errors therein or omissions therefrom. Only those representations and warranties (if any) that are included in any final definitive written agreement that provides for the consummation of a negotiated transaction between the Receiving Party and the Company and is validly executed on behalf of the Receiving Party and the Company will have legal effect.
6. Standstill Agreement. In consideration of the Confidential Information being furnished to the Receiving Party pursuant to this Agreement, the Receiving Party agrees that, for a period of one year from the date of this Agreement (or, such shorter period agreed to by the Company with a third party who is provided access to the Confidential Information for the purpose of evaluating a possible Transaction, the “Standstill Period”), unless expressly requested by the Company or its Board of Directors (or any committee thereof) in writing, the Receiving Party shall not (and shall cause its affiliates not to and shall cause its and their respective Representatives acting at its and their respective behalf not to): (a) in any manner acting alone or in concert with others, acquire, agree to acquire or make any proposal to acquire, directly or indirectly, by means of purchase, merger, business combination or in any other manner, beneficial ownership of any securities of the Company, direct or indirect rights to acquire any securities of the Company (including any derivative securities with economic equivalents of ownership of any of such securities), any right to vote or to direct the voting of any securities of the Company or any assets of the Company, (b) make, or in any way participate in, directly or indirectly, any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote, or seek to advise or influence any person with respect to the voting of, any voting securities of the Company, (c) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) with respect to any voting securities of the Company, other than any group comprised solely of the Receiving Party and its affiliates, (d) otherwise act, alone or in concert with others, to seek to control, advise, change or influence the management, board of directors, governing instruments, policies or affairs of the Company, (e) make any public disclosure, or take any action that could require the Company to make any public disclosure, with respect to any of the matters set forth in this Agreement, other than the required amendment to the Receiving Party’s Schedule 13D filing as a result of the execution and delivery of this Agreement, (f) disclose any intention, plan or arrangement inconsistent with the foregoing or (g) have any discussions or enter into any arrangements (whether written or oral) with, or advise, assist or encourage any other persons in connection with any of the foregoing. The Receiving Party also agrees during such period not to request the Company or any of the Company Representatives, directly or indirectly, to amend or waive any provision of this Section 6 (including this sentence). Notwithstanding any provision in this Agreement to the contrary, (i) the Standstill Period shall terminate immediately if, after the date of this Agreement, (A) the Company enters into a definitive agreement with a third party to effectuate a sale of 50% or more of the consolidated assets of the Company or 50% or more of the Company’s outstanding equity securities, (B) the Company publicly announces the conclusion of its previously announced strategic review process without a definitive agreement to sell the Company, (C) the Company makes an assignment for the benefit of creditors or commences any proceeding under any bankruptcy reorganization, insolvency, dissolution or liquidation law of any jurisdiction or (D) any bankruptcy petition is filed or any such proceeding is commenced against the Company and either (1) the Company indicates its approval thereof, consent thereto or acquiescence therein, or (2) such petition application or proceeding is not dismissed within 30 days and (ii) the Standstill Period solely with respect to clause (b) of this Section 6 shall terminate ten days prior to the expiration of the applicable time period for stockholders to nominate directors for election at the Company’s 2012 annual stockholders meeting to be scheduled in accordance with Section 8 hereof (and, for the avoidance of doubt, the restrictions in clauses (c), (d), (e), (f) and (g) of this Section 6 shall not apply to the activities that were previously expressly prohibited by clause (b) of this Section 6 in the event the restrictions in clause (b) are terminated pursuant to this clause (ii)).
7. Return of Confidential Information. Promptly upon the written request of the Company, the Receiving Party will return all copies of the Confidential Information to the Company, and all notes, studies, reports, memoranda and other documents or materials prepared by the Receiving Party or its Representatives that contain or reflect any Confidential Information shall be destroyed. Notwithstanding the return to the Company or destruction of Confidential Information pursuant to this Section 7, the Receiving Party and its Representatives will continue to be bound by their confidentiality obligations and other obligations under this Agreement for the term hereof. Notwithstanding the foregoing, (a) the Receiving Party’s legal department and/or outside counsel may keep one copy of the Confidential Information (in electronic or paper form) and, with respect to the Receiving Party’s Representatives who are accounting firms, such firms may keep one copy of the Confidential Information, in each case, if required to comply with applicable law or regulation and (b) the Receiving Party and its Representatives may retain Confidential Information to the extent it is “backed-up” on its or their (as the case may be) electronic information management and communications systems or servers, is not available to an end user and cannot be expunged without considerable effort; provided, that any such information so retained pursuant to clauses (a) and (b) of this Section 7 shall be held in compliance with the terms of this Agreement for a period of eighteen months from the date hereof.
8. 2012 Annual Stockholders Meeting. The Company agrees (a) that the meeting date for its 2012 annual stockholders meeting (with respect to the Company’s fiscal year ended January 28, 2012) will be held no earlier than thirty-one days after the first anniversary of the Company’s 2011 annual stockholders meeting (with respect to the Company’s fiscal year ended January 29, 2011) and (b) to provide the Receiving Party a copy of the press release announcing the date of its 2012 annual meeting on the date such press release is publicly issued.
9. Subpoena or Court Order. In the event that the Receiving Party or anyone to whom it discloses the Confidential Information receives a request to disclose all or any part of the Confidential Information or Discussion Information under the terms of a subpoena or other order issued by a court of competent jurisdiction or by another governmental agency, the Receiving Party shall if permitted pursuant to applicable law (a) promptly notify the Company of the existence, terms and circumstances surrounding such a request, (b) consult with the Company on the advisability of taking steps to resist or narrow such request, (c) if disclosure of such Confidential Information or Discussion Information is required, furnish only such portion of the Confidential Information or Discussion Information as the Receiving Party is advised by its legal counsel is legally required to be disclosed and (d) if requested by the Company, cooperate with the Company in its efforts to obtain a protective order or other relief to prevent the disclosure of the Confidential Information or Discussion Information or other reliable assurance that confidential treatment will be accorded to such portion of the Confidential Information or Discussion Information, as applicable, that is required to be disclosed.
10. Definitive Agreement. Unless and until a definitive written agreement between the Receiving Party and the Company with respect to a Transaction has been executed and delivered, neither the Receiving Party nor the Company will be under
any legal obligation of any kind whatsoever with respect to such a Transaction by virtue of this or any other written or oral expression by either of them or their Representatives except, in the case of this Agreement, for the matters specifically agreed to herein.
11. Remedies. Each of the parties hereto acknowledges that in the event of any breach of the terms of this Agreement, the other party could not be made whole by monetary damages only. Accordingly, each of the parties hereto, in addition to any other remedy to which it may be entitled in law or in equity, shall be entitled to an injunction (which shall include a temporary restraining order) to prevent breaches of the terms of this Agreement.
12. Communications. Without the Company’s prior written consent, which may be withheld by the Company in its sole discretion, the Receiving Party shall not (and shall cause its Representatives not to) initiate, other than through the Company’s financial and legal advisors or such other persons, as designated by the Company in writing, any (a) communication concerning the Confidential Information, (b) requests for meetings with management of the Company in connection with the possible Transaction or other transaction between the parties or (c) communication relating to the business of the Company or the possible Transaction, in each case, with any officer, director or employee of the Company.
13. Securities Laws. The Receiving Party acknowledges that it is aware and that the Receiving Party and its Representatives have been advised that the United States securities laws prohibit any person having non-public material information about a company from purchasing or selling securities of that company or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities.
14. Entire Agreement; Amendments. This Agreement represents the entire understanding and agreement of the parties hereto with respect to the matters contained herein, and may be amended, modified or waived only by a separate writing executed by the Receiving Party and the Company expressly so amending, modifying or waiving this Agreement. This Agreement shall inure to the benefit of and be binding upon the parties and their respective successors and assigns.
15. No Waiver. No failure or delay by either party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder.
16. Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of New York, without regard to the laws of conflict of laws. Each of the parties hereto: (a) irrevocably and unconditionally consents and submits to the jurisdiction of the state and federal courts located in the State of New York for purposes of any action, suit or proceeding arising out of or relating to this Agreement; (b) agrees that service of any process, summons, notice or document by U.S. registered mail to the address set forth at the end of this Agreement shall be effective service of process for any action, suit or proceeding brought against such party; (c) irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of or relating to this Agreement in any state or federal court located in the State of New York; and (d) irrevocably and unconditionally waives the right to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any action, suit or proceeding arising out of or relating to this Agreement that is brought in any state or federal court located in the State of New York has been brought in an inconvenient forum.
17. Expenses. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines that a party has breached this Agreement, then such party shall be liable and pay to the non-breaching party the legal fees and expenses such non-breaching party has incurred in connection with such litigation, including any appeal therefrom.
18. Captions. The Captions contained in this Agreement are for convenience only and shall not affect the construction or interpretation of any provisions of this Agreement.
19. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same Agreement.
20. Severability. In the event any term of this Agreement is found by any court to be void or otherwise unenforceable, the remainder of this Agreement shall remain valid and enforceable as though such term were absent upon the date of its execution.
21. Notices. All notices and other communications required or permitted hereunder will be in writing and will be deemed to have been duly given when delivered in person or when dispatched by email or electronic facsimile transfer (with such facsimile confirmed in writing by mail simultaneously dispatched) to the Company at the address specified below:
The Talbots, Inc.
Attention: Chief Operating Officer
One Talbots Drive
Hingham, MA 02043
Telephone: 781-741-7600
Facsimile: 781-741-4927
with copies to:
The Talbots, Inc.
Attention: General Counsel
211 South Ridge St.
Rye Brook, NY 10573
Telephone: 914-934-8877
Facsimile: 914-934-9136
and
Dewey & LeBoeuf LLP
Attention: Morton A. Pierce, Esq.
Chang-Do Gong, Esq.
1301 Avenue of the Americas
New York, NY 10019
Telephone: 212-259-8000
Facsimile: 212-259-6333
22. Non-Private Equity Affiliates. Notwithstanding anything to the contrary provided elsewhere herein, none of the provisions of this Agreement shall in any way limit the ordinary course business services and activities of the Receiving Party and its affiliates; provided, that (a) such services and activities are distinct from the private equity business and (b) the Confidential Information is not made available to Representatives of the Receiving Party and its affiliates who are not involved in the private equity business or who are engaged in investments that are not private equity investments and such ordinary course business services and activities are otherwise conducted without any reference to, or use of, the Confidential Information. The Receiving Party further represents to the Company that the Receiving Party has implemented appropriate internal restrictions on the sharing of confidential information (including, without limitation, the implementation of ethical walls around certain affiliates, to comply with federal securities laws of the United States).
23. Termination. Except as otherwise specified herein, the obligations of the parties set forth in this Agreement shall terminate and be of no further force and effect eighteen months from the date hereof.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, THIS AGREEMENT is executed and delivered effective as of the date first written above.
THE TALBOTS, INC.
By /s/ Richard T. O’Connell, Jr.
Name: Richard T. O’Connell, Jr.
Title: Executive Vice President
SYCAMORE PARTNERS MANAGEMENT, L.L.C.
By /s/ Stefan Kaluzny
Name: /s/ Stefan Kaluzny
Title: Managing Director
| Contradiction |
538_nda-1 | 538_nda-1_0 | Q: All Confidential Information shall be expressly identified by the Disclosing Party.
Text: STRICTLY CONFIDENTIAL
January 27, 2012
Sycamore Partners Management, L.L.C.
9 West 57 Street, 31 Floorthst
New York, New York 10019
Attention: Stefan Kaluzny
Managing Director
Dear Mr. Kaluzny:
CONFIDENTIALITY AGREEMENT
This Confidentiality Agreement (this “Agreement”) is dated as of January 27, 2012 by and between Sycamore Partners Management, L.L.C., a Delaware limited liability company (the “Receiving Party”) and The Talbots, Inc., a Delaware corporation (together with its subsidiaries, the “Company”).
1. Confidential Information; Representatives. (a) The Receiving Party is considering a possible business combination transaction (whether negotiated directly with the Company’s Board of Directors or otherwise) with respect to the Company (the “Transaction”), and, in order to assist the Receiving Party in evaluating the possible Transaction, the Company is prepared to make available to the Receiving Party certain information concerning the business, operations, strategy and prospects of the Company (all such information, the “Confidential Information”). As a condition to the Confidential Information being furnished to the Receiving Party and the directors, officers, principals, partners, members, employees, agents, consultants, related investment funds, advisors, attorneys, accountants, affiliates, potential sources of capital and financing, and financial advisors (collectively, “Representatives”) of the Receiving Party, the Receiving Party agrees to treat the Confidential Information strictly in accordance with the provisions of this Agreement and to otherwise comply, and to cause its Representatives to comply, with all obligations hereinafter set forth.
(b) The term “Confidential Information” shall include, without limitation, any and all information concerning the Company and its business, operations, strategic initiatives, financing, employees, strategies or prospects that is furnished to the Receiving Party or its Representatives by or on behalf of the Company, whether furnished before or after the date of this Agreement, including, without limitation, any written or oral analyses, business or strategic plans, compilations, studies, data, reports, interpretations, projections, forecasts, records, notes, copies, excerpts, memoranda, documents or other materials (in whatever form maintained or conveyed, whether documentary, computerized, verbal form or otherwise), that contain or otherwise reflect Confidential Information concerning the Company or its business, operations, strategic
initiatives, financing, employees, strategies or prospects prepared by or on behalf of the Receiving Party, any of the Receiving Party’s Representatives, the Company or any Company Representatives (as defined below) or that otherwise reflect any conversations with Company Representatives involving or relating to the Confidential Information.
2. Excluded Information. The Confidential Information shall not include information that the Receiving Party can demonstrate (a) is or becomes available to the public other than as a result of acts by the Receiving Party or its Representatives in breach of the terms of this Agreement, (b) was in the Receiving Party’s possession prior to disclosure by the Company, provided that such information, to the Receiving Party’s knowledge, was not subject to another confidentiality agreement with the Company or another party, (c) has been independently developed by the Receiving Party without reference to, or the use of, any Confidential Information or (d) is disclosed to the Receiving Party by a third party, to the Receiving Party’s knowledge, not bound by any duty or obligation of confidentiality on a non-confidential basis.
3. Limitations on Use and Disclosure of Confidential Information. (a) The Receiving Party shall, and shall cause its Representatives to, use the Confidential Information solely for the purpose of evaluating a possible Transaction. The Receiving Party shall, and shall cause its Representatives to, keep the Confidential Information in confidence and shall not disclose any of the Confidential Information in any manner whatsoever; provided, however, that (i) the Receiving Party may make disclosure of information contained in the Confidential Information if required by applicable law, regulation or legal or regulatory process; provided, that the Receiving Party shall have first complied with the terms of Section 9 hereof, (ii) the Receiving Party may make disclosure of information contained in the Confidential Information to the extent that the Company gives its prior written consent, and (iii) any information contained in the Confidential Information may be disclosed to the Receiving Party’s Representatives who reasonably require access to such information for the purpose of evaluating a possible Transaction and who agree to keep such information in confidence to the same extent as described herein; provided, further, that the Receiving Party shall not make any disclosure of any Confidential Information to any potential sources of equity financing without the Company’s prior written consent. The Receiving Party shall be responsible for any breach of the terms of this Agreement by the Receiving Party or by any of its Representatives.
(b) The Receiving Party agrees that, for a period of eighteen months from the date of this Agreement, the Receiving Party shall not (and shall cause its affiliates, subject to Section 22 hereof, not to), directly or indirectly, (i) use the Confidential Information to divert or attempt to divert any business or customer of the Company or (ii) employ or solicit, or initiate contact for employment with, any (A) director, officer or other senior or key employee of the Company or (B) any other employee of the Company whom the Receiving Party meets during its evaluation of the possible Transaction or about whom the Receiving Party receives Confidential Information; provided, however, a general advertisement or other recruiting efforts not specifically targeting any such employees of the Company shall not be considered a solicitation or unauthorized hiring.
(c) If the Receiving Party discovers any unauthorized disclosure or use of any Confidential Information by it or its Representatives, the Receiving Party hereby covenants to promptly notify the Company in writing of any such unauthorized disclosure or use.
4. Non-Disclosure of Existence of Negotiations. Without the prior written consent of the Company or except as may be required by applicable law or regulation, the Receiving Party and its Representatives shall not disclose to any person that any discussions or negotiations are taking place between the parties concerning a possible Transaction, including the content, timing and status of such discussions or negotiations (the “Discussion Information”).
5. No Representations by the Company. The Company will have the exclusive authority to decide what Confidential Information (if any) is to be made available to the Receiving Party and its Representatives. Neither the Company nor any of its directors, officers, employees, agents, consultants, advisors, attorneys, accountants and affiliates (collectively, the “Company Representatives”) will be under any obligation to make any particular Confidential Information available to the Receiving Party or any of the Receiving Party’s Representatives or to supplement or update any Confidential Information previously furnished. Neither the Company nor any of the Company Representatives has made or is making any representation or warranty, express or implied, as to the accuracy or completeness of any Confidential Information, and neither the Company nor any of the Company Representatives will have any liability to the Receiving Party or to any of the Receiving Party’s Representatives relating to or resulting from the use of any Confidential Information or any inaccuracies or errors therein or omissions therefrom. Only those representations and warranties (if any) that are included in any final definitive written agreement that provides for the consummation of a negotiated transaction between the Receiving Party and the Company and is validly executed on behalf of the Receiving Party and the Company will have legal effect.
6. Standstill Agreement. In consideration of the Confidential Information being furnished to the Receiving Party pursuant to this Agreement, the Receiving Party agrees that, for a period of one year from the date of this Agreement (or, such shorter period agreed to by the Company with a third party who is provided access to the Confidential Information for the purpose of evaluating a possible Transaction, the “Standstill Period”), unless expressly requested by the Company or its Board of Directors (or any committee thereof) in writing, the Receiving Party shall not (and shall cause its affiliates not to and shall cause its and their respective Representatives acting at its and their respective behalf not to): (a) in any manner acting alone or in concert with others, acquire, agree to acquire or make any proposal to acquire, directly or indirectly, by means of purchase, merger, business combination or in any other manner, beneficial ownership of any securities of the Company, direct or indirect rights to acquire any securities of the Company (including any derivative securities with economic equivalents of ownership of any of such securities), any right to vote or to direct the voting of any securities of the Company or any assets of the Company, (b) make, or in any way participate in, directly or indirectly, any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote, or seek to advise or influence any person with respect to the voting of, any voting securities of the Company, (c) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) with respect to any voting securities of the Company, other than any group comprised solely of the Receiving Party and its affiliates, (d) otherwise act, alone or in concert with others, to seek to control, advise, change or influence the management, board of directors, governing instruments, policies or affairs of the Company, (e) make any public disclosure, or take any action that could require the Company to make any public disclosure, with respect to any of the matters set forth in this Agreement, other than the required amendment to the Receiving Party’s Schedule 13D filing as a result of the execution and delivery of this Agreement, (f) disclose any intention, plan or arrangement inconsistent with the foregoing or (g) have any discussions or enter into any arrangements (whether written or oral) with, or advise, assist or encourage any other persons in connection with any of the foregoing. The Receiving Party also agrees during such period not to request the Company or any of the Company Representatives, directly or indirectly, to amend or waive any provision of this Section 6 (including this sentence). Notwithstanding any provision in this Agreement to the contrary, (i) the Standstill Period shall terminate immediately if, after the date of this Agreement, (A) the Company enters into a definitive agreement with a third party to effectuate a sale of 50% or more of the consolidated assets of the Company or 50% or more of the Company’s outstanding equity securities, (B) the Company publicly announces the conclusion of its previously announced strategic review process without a definitive agreement to sell the Company, (C) the Company makes an assignment for the benefit of creditors or commences any proceeding under any bankruptcy reorganization, insolvency, dissolution or liquidation law of any jurisdiction or (D) any bankruptcy petition is filed or any such proceeding is commenced against the Company and either (1) the Company indicates its approval thereof, consent thereto or acquiescence therein, or (2) such petition application or proceeding is not dismissed within 30 days and (ii) the Standstill Period solely with respect to clause (b) of this Section 6 shall terminate ten days prior to the expiration of the applicable time period for stockholders to nominate directors for election at the Company’s 2012 annual stockholders meeting to be scheduled in accordance with Section 8 hereof (and, for the avoidance of doubt, the restrictions in clauses (c), (d), (e), (f) and (g) of this Section 6 shall not apply to the activities that were previously expressly prohibited by clause (b) of this Section 6 in the event the restrictions in clause (b) are terminated pursuant to this clause (ii)).
7. Return of Confidential Information. Promptly upon the written request of the Company, the Receiving Party will return all copies of the Confidential Information to the Company, and all notes, studies, reports, memoranda and other documents or materials prepared by the Receiving Party or its Representatives that contain or reflect any Confidential Information shall be destroyed. Notwithstanding the return to the Company or destruction of Confidential Information pursuant to this Section 7, the Receiving Party and its Representatives will continue to be bound by their confidentiality obligations and other obligations under this Agreement for the term hereof. Notwithstanding the foregoing, (a) the Receiving Party’s legal department and/or outside counsel may keep one copy of the Confidential Information (in electronic or paper form) and, with respect to the Receiving Party’s Representatives who are accounting firms, such firms may keep one copy of the Confidential Information, in each case, if required to comply with applicable law or regulation and (b) the Receiving Party and its Representatives may retain Confidential Information to the extent it is “backed-up” on its or their (as the case may be) electronic information management and communications systems or servers, is not available to an end user and cannot be expunged without considerable effort; provided, that any such information so retained pursuant to clauses (a) and (b) of this Section 7 shall be held in compliance with the terms of this Agreement for a period of eighteen months from the date hereof.
8. 2012 Annual Stockholders Meeting. The Company agrees (a) that the meeting date for its 2012 annual stockholders meeting (with respect to the Company’s fiscal year ended January 28, 2012) will be held no earlier than thirty-one days after the first anniversary of the Company’s 2011 annual stockholders meeting (with respect to the Company’s fiscal year ended January 29, 2011) and (b) to provide the Receiving Party a copy of the press release announcing the date of its 2012 annual meeting on the date such press release is publicly issued.
9. Subpoena or Court Order. In the event that the Receiving Party or anyone to whom it discloses the Confidential Information receives a request to disclose all or any part of the Confidential Information or Discussion Information under the terms of a subpoena or other order issued by a court of competent jurisdiction or by another governmental agency, the Receiving Party shall if permitted pursuant to applicable law (a) promptly notify the Company of the existence, terms and circumstances surrounding such a request, (b) consult with the Company on the advisability of taking steps to resist or narrow such request, (c) if disclosure of such Confidential Information or Discussion Information is required, furnish only such portion of the Confidential Information or Discussion Information as the Receiving Party is advised by its legal counsel is legally required to be disclosed and (d) if requested by the Company, cooperate with the Company in its efforts to obtain a protective order or other relief to prevent the disclosure of the Confidential Information or Discussion Information or other reliable assurance that confidential treatment will be accorded to such portion of the Confidential Information or Discussion Information, as applicable, that is required to be disclosed.
10. Definitive Agreement. Unless and until a definitive written agreement between the Receiving Party and the Company with respect to a Transaction has been executed and delivered, neither the Receiving Party nor the Company will be under
any legal obligation of any kind whatsoever with respect to such a Transaction by virtue of this or any other written or oral expression by either of them or their Representatives except, in the case of this Agreement, for the matters specifically agreed to herein.
11. Remedies. Each of the parties hereto acknowledges that in the event of any breach of the terms of this Agreement, the other party could not be made whole by monetary damages only. Accordingly, each of the parties hereto, in addition to any other remedy to which it may be entitled in law or in equity, shall be entitled to an injunction (which shall include a temporary restraining order) to prevent breaches of the terms of this Agreement.
12. Communications. Without the Company’s prior written consent, which may be withheld by the Company in its sole discretion, the Receiving Party shall not (and shall cause its Representatives not to) initiate, other than through the Company’s financial and legal advisors or such other persons, as designated by the Company in writing, any (a) communication concerning the Confidential Information, (b) requests for meetings with management of the Company in connection with the possible Transaction or other transaction between the parties or (c) communication relating to the business of the Company or the possible Transaction, in each case, with any officer, director or employee of the Company.
13. Securities Laws. The Receiving Party acknowledges that it is aware and that the Receiving Party and its Representatives have been advised that the United States securities laws prohibit any person having non-public material information about a company from purchasing or selling securities of that company or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities.
14. Entire Agreement; Amendments. This Agreement represents the entire understanding and agreement of the parties hereto with respect to the matters contained herein, and may be amended, modified or waived only by a separate writing executed by the Receiving Party and the Company expressly so amending, modifying or waiving this Agreement. This Agreement shall inure to the benefit of and be binding upon the parties and their respective successors and assigns.
15. No Waiver. No failure or delay by either party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder.
16. Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of New York, without regard to the laws of conflict of laws. Each of the parties hereto: (a) irrevocably and unconditionally consents and submits to the jurisdiction of the state and federal courts located in the State of New York for purposes of any action, suit or proceeding arising out of or relating to this Agreement; (b) agrees that service of any process, summons, notice or document by U.S. registered mail to the address set forth at the end of this Agreement shall be effective service of process for any action, suit or proceeding brought against such party; (c) irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of or relating to this Agreement in any state or federal court located in the State of New York; and (d) irrevocably and unconditionally waives the right to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any action, suit or proceeding arising out of or relating to this Agreement that is brought in any state or federal court located in the State of New York has been brought in an inconvenient forum.
17. Expenses. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines that a party has breached this Agreement, then such party shall be liable and pay to the non-breaching party the legal fees and expenses such non-breaching party has incurred in connection with such litigation, including any appeal therefrom.
18. Captions. The Captions contained in this Agreement are for convenience only and shall not affect the construction or interpretation of any provisions of this Agreement.
19. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same Agreement.
20. Severability. In the event any term of this Agreement is found by any court to be void or otherwise unenforceable, the remainder of this Agreement shall remain valid and enforceable as though such term were absent upon the date of its execution.
21. Notices. All notices and other communications required or permitted hereunder will be in writing and will be deemed to have been duly given when delivered in person or when dispatched by email or electronic facsimile transfer (with such facsimile confirmed in writing by mail simultaneously dispatched) to the Company at the address specified below:
The Talbots, Inc.
Attention: Chief Operating Officer
One Talbots Drive
Hingham, MA 02043
Telephone: 781-741-7600
Facsimile: 781-741-4927
with copies to:
The Talbots, Inc.
Attention: General Counsel
211 South Ridge St.
Rye Brook, NY 10573
Telephone: 914-934-8877
Facsimile: 914-934-9136
and
Dewey & LeBoeuf LLP
Attention: Morton A. Pierce, Esq.
Chang-Do Gong, Esq.
1301 Avenue of the Americas
New York, NY 10019
Telephone: 212-259-8000
Facsimile: 212-259-6333
22. Non-Private Equity Affiliates. Notwithstanding anything to the contrary provided elsewhere herein, none of the provisions of this Agreement shall in any way limit the ordinary course business services and activities of the Receiving Party and its affiliates; provided, that (a) such services and activities are distinct from the private equity business and (b) the Confidential Information is not made available to Representatives of the Receiving Party and its affiliates who are not involved in the private equity business or who are engaged in investments that are not private equity investments and such ordinary course business services and activities are otherwise conducted without any reference to, or use of, the Confidential Information. The Receiving Party further represents to the Company that the Receiving Party has implemented appropriate internal restrictions on the sharing of confidential information (including, without limitation, the implementation of ethical walls around certain affiliates, to comply with federal securities laws of the United States).
23. Termination. Except as otherwise specified herein, the obligations of the parties set forth in this Agreement shall terminate and be of no further force and effect eighteen months from the date hereof.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, THIS AGREEMENT is executed and delivered effective as of the date first written above.
THE TALBOTS, INC.
By /s/ Richard T. O’Connell, Jr.
Name: Richard T. O’Connell, Jr.
Title: Executive Vice President
SYCAMORE PARTNERS MANAGEMENT, L.L.C.
By /s/ Stefan Kaluzny
Name: /s/ Stefan Kaluzny
Title: Managing Director
| Not mentioned |
538_nda-19 | 538_nda-19_0 | Q: Some obligations of Agreement may survive termination of Agreement.
Text: STRICTLY CONFIDENTIAL
January 27, 2012
Sycamore Partners Management, L.L.C.
9 West 57 Street, 31 Floorthst
New York, New York 10019
Attention: Stefan Kaluzny
Managing Director
Dear Mr. Kaluzny:
CONFIDENTIALITY AGREEMENT
This Confidentiality Agreement (this “Agreement”) is dated as of January 27, 2012 by and between Sycamore Partners Management, L.L.C., a Delaware limited liability company (the “Receiving Party”) and The Talbots, Inc., a Delaware corporation (together with its subsidiaries, the “Company”).
1. Confidential Information; Representatives. (a) The Receiving Party is considering a possible business combination transaction (whether negotiated directly with the Company’s Board of Directors or otherwise) with respect to the Company (the “Transaction”), and, in order to assist the Receiving Party in evaluating the possible Transaction, the Company is prepared to make available to the Receiving Party certain information concerning the business, operations, strategy and prospects of the Company (all such information, the “Confidential Information”). As a condition to the Confidential Information being furnished to the Receiving Party and the directors, officers, principals, partners, members, employees, agents, consultants, related investment funds, advisors, attorneys, accountants, affiliates, potential sources of capital and financing, and financial advisors (collectively, “Representatives”) of the Receiving Party, the Receiving Party agrees to treat the Confidential Information strictly in accordance with the provisions of this Agreement and to otherwise comply, and to cause its Representatives to comply, with all obligations hereinafter set forth.
(b) The term “Confidential Information” shall include, without limitation, any and all information concerning the Company and its business, operations, strategic initiatives, financing, employees, strategies or prospects that is furnished to the Receiving Party or its Representatives by or on behalf of the Company, whether furnished before or after the date of this Agreement, including, without limitation, any written or oral analyses, business or strategic plans, compilations, studies, data, reports, interpretations, projections, forecasts, records, notes, copies, excerpts, memoranda, documents or other materials (in whatever form maintained or conveyed, whether documentary, computerized, verbal form or otherwise), that contain or otherwise reflect Confidential Information concerning the Company or its business, operations, strategic
initiatives, financing, employees, strategies or prospects prepared by or on behalf of the Receiving Party, any of the Receiving Party’s Representatives, the Company or any Company Representatives (as defined below) or that otherwise reflect any conversations with Company Representatives involving or relating to the Confidential Information.
2. Excluded Information. The Confidential Information shall not include information that the Receiving Party can demonstrate (a) is or becomes available to the public other than as a result of acts by the Receiving Party or its Representatives in breach of the terms of this Agreement, (b) was in the Receiving Party’s possession prior to disclosure by the Company, provided that such information, to the Receiving Party’s knowledge, was not subject to another confidentiality agreement with the Company or another party, (c) has been independently developed by the Receiving Party without reference to, or the use of, any Confidential Information or (d) is disclosed to the Receiving Party by a third party, to the Receiving Party’s knowledge, not bound by any duty or obligation of confidentiality on a non-confidential basis.
3. Limitations on Use and Disclosure of Confidential Information. (a) The Receiving Party shall, and shall cause its Representatives to, use the Confidential Information solely for the purpose of evaluating a possible Transaction. The Receiving Party shall, and shall cause its Representatives to, keep the Confidential Information in confidence and shall not disclose any of the Confidential Information in any manner whatsoever; provided, however, that (i) the Receiving Party may make disclosure of information contained in the Confidential Information if required by applicable law, regulation or legal or regulatory process; provided, that the Receiving Party shall have first complied with the terms of Section 9 hereof, (ii) the Receiving Party may make disclosure of information contained in the Confidential Information to the extent that the Company gives its prior written consent, and (iii) any information contained in the Confidential Information may be disclosed to the Receiving Party’s Representatives who reasonably require access to such information for the purpose of evaluating a possible Transaction and who agree to keep such information in confidence to the same extent as described herein; provided, further, that the Receiving Party shall not make any disclosure of any Confidential Information to any potential sources of equity financing without the Company’s prior written consent. The Receiving Party shall be responsible for any breach of the terms of this Agreement by the Receiving Party or by any of its Representatives.
(b) The Receiving Party agrees that, for a period of eighteen months from the date of this Agreement, the Receiving Party shall not (and shall cause its affiliates, subject to Section 22 hereof, not to), directly or indirectly, (i) use the Confidential Information to divert or attempt to divert any business or customer of the Company or (ii) employ or solicit, or initiate contact for employment with, any (A) director, officer or other senior or key employee of the Company or (B) any other employee of the Company whom the Receiving Party meets during its evaluation of the possible Transaction or about whom the Receiving Party receives Confidential Information; provided, however, a general advertisement or other recruiting efforts not specifically targeting any such employees of the Company shall not be considered a solicitation or unauthorized hiring.
(c) If the Receiving Party discovers any unauthorized disclosure or use of any Confidential Information by it or its Representatives, the Receiving Party hereby covenants to promptly notify the Company in writing of any such unauthorized disclosure or use.
4. Non-Disclosure of Existence of Negotiations. Without the prior written consent of the Company or except as may be required by applicable law or regulation, the Receiving Party and its Representatives shall not disclose to any person that any discussions or negotiations are taking place between the parties concerning a possible Transaction, including the content, timing and status of such discussions or negotiations (the “Discussion Information”).
5. No Representations by the Company. The Company will have the exclusive authority to decide what Confidential Information (if any) is to be made available to the Receiving Party and its Representatives. Neither the Company nor any of its directors, officers, employees, agents, consultants, advisors, attorneys, accountants and affiliates (collectively, the “Company Representatives”) will be under any obligation to make any particular Confidential Information available to the Receiving Party or any of the Receiving Party’s Representatives or to supplement or update any Confidential Information previously furnished. Neither the Company nor any of the Company Representatives has made or is making any representation or warranty, express or implied, as to the accuracy or completeness of any Confidential Information, and neither the Company nor any of the Company Representatives will have any liability to the Receiving Party or to any of the Receiving Party’s Representatives relating to or resulting from the use of any Confidential Information or any inaccuracies or errors therein or omissions therefrom. Only those representations and warranties (if any) that are included in any final definitive written agreement that provides for the consummation of a negotiated transaction between the Receiving Party and the Company and is validly executed on behalf of the Receiving Party and the Company will have legal effect.
6. Standstill Agreement. In consideration of the Confidential Information being furnished to the Receiving Party pursuant to this Agreement, the Receiving Party agrees that, for a period of one year from the date of this Agreement (or, such shorter period agreed to by the Company with a third party who is provided access to the Confidential Information for the purpose of evaluating a possible Transaction, the “Standstill Period”), unless expressly requested by the Company or its Board of Directors (or any committee thereof) in writing, the Receiving Party shall not (and shall cause its affiliates not to and shall cause its and their respective Representatives acting at its and their respective behalf not to): (a) in any manner acting alone or in concert with others, acquire, agree to acquire or make any proposal to acquire, directly or indirectly, by means of purchase, merger, business combination or in any other manner, beneficial ownership of any securities of the Company, direct or indirect rights to acquire any securities of the Company (including any derivative securities with economic equivalents of ownership of any of such securities), any right to vote or to direct the voting of any securities of the Company or any assets of the Company, (b) make, or in any way participate in, directly or indirectly, any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote, or seek to advise or influence any person with respect to the voting of, any voting securities of the Company, (c) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) with respect to any voting securities of the Company, other than any group comprised solely of the Receiving Party and its affiliates, (d) otherwise act, alone or in concert with others, to seek to control, advise, change or influence the management, board of directors, governing instruments, policies or affairs of the Company, (e) make any public disclosure, or take any action that could require the Company to make any public disclosure, with respect to any of the matters set forth in this Agreement, other than the required amendment to the Receiving Party’s Schedule 13D filing as a result of the execution and delivery of this Agreement, (f) disclose any intention, plan or arrangement inconsistent with the foregoing or (g) have any discussions or enter into any arrangements (whether written or oral) with, or advise, assist or encourage any other persons in connection with any of the foregoing. The Receiving Party also agrees during such period not to request the Company or any of the Company Representatives, directly or indirectly, to amend or waive any provision of this Section 6 (including this sentence). Notwithstanding any provision in this Agreement to the contrary, (i) the Standstill Period shall terminate immediately if, after the date of this Agreement, (A) the Company enters into a definitive agreement with a third party to effectuate a sale of 50% or more of the consolidated assets of the Company or 50% or more of the Company’s outstanding equity securities, (B) the Company publicly announces the conclusion of its previously announced strategic review process without a definitive agreement to sell the Company, (C) the Company makes an assignment for the benefit of creditors or commences any proceeding under any bankruptcy reorganization, insolvency, dissolution or liquidation law of any jurisdiction or (D) any bankruptcy petition is filed or any such proceeding is commenced against the Company and either (1) the Company indicates its approval thereof, consent thereto or acquiescence therein, or (2) such petition application or proceeding is not dismissed within 30 days and (ii) the Standstill Period solely with respect to clause (b) of this Section 6 shall terminate ten days prior to the expiration of the applicable time period for stockholders to nominate directors for election at the Company’s 2012 annual stockholders meeting to be scheduled in accordance with Section 8 hereof (and, for the avoidance of doubt, the restrictions in clauses (c), (d), (e), (f) and (g) of this Section 6 shall not apply to the activities that were previously expressly prohibited by clause (b) of this Section 6 in the event the restrictions in clause (b) are terminated pursuant to this clause (ii)).
7. Return of Confidential Information. Promptly upon the written request of the Company, the Receiving Party will return all copies of the Confidential Information to the Company, and all notes, studies, reports, memoranda and other documents or materials prepared by the Receiving Party or its Representatives that contain or reflect any Confidential Information shall be destroyed. Notwithstanding the return to the Company or destruction of Confidential Information pursuant to this Section 7, the Receiving Party and its Representatives will continue to be bound by their confidentiality obligations and other obligations under this Agreement for the term hereof. Notwithstanding the foregoing, (a) the Receiving Party’s legal department and/or outside counsel may keep one copy of the Confidential Information (in electronic or paper form) and, with respect to the Receiving Party’s Representatives who are accounting firms, such firms may keep one copy of the Confidential Information, in each case, if required to comply with applicable law or regulation and (b) the Receiving Party and its Representatives may retain Confidential Information to the extent it is “backed-up” on its or their (as the case may be) electronic information management and communications systems or servers, is not available to an end user and cannot be expunged without considerable effort; provided, that any such information so retained pursuant to clauses (a) and (b) of this Section 7 shall be held in compliance with the terms of this Agreement for a period of eighteen months from the date hereof.
8. 2012 Annual Stockholders Meeting. The Company agrees (a) that the meeting date for its 2012 annual stockholders meeting (with respect to the Company’s fiscal year ended January 28, 2012) will be held no earlier than thirty-one days after the first anniversary of the Company’s 2011 annual stockholders meeting (with respect to the Company’s fiscal year ended January 29, 2011) and (b) to provide the Receiving Party a copy of the press release announcing the date of its 2012 annual meeting on the date such press release is publicly issued.
9. Subpoena or Court Order. In the event that the Receiving Party or anyone to whom it discloses the Confidential Information receives a request to disclose all or any part of the Confidential Information or Discussion Information under the terms of a subpoena or other order issued by a court of competent jurisdiction or by another governmental agency, the Receiving Party shall if permitted pursuant to applicable law (a) promptly notify the Company of the existence, terms and circumstances surrounding such a request, (b) consult with the Company on the advisability of taking steps to resist or narrow such request, (c) if disclosure of such Confidential Information or Discussion Information is required, furnish only such portion of the Confidential Information or Discussion Information as the Receiving Party is advised by its legal counsel is legally required to be disclosed and (d) if requested by the Company, cooperate with the Company in its efforts to obtain a protective order or other relief to prevent the disclosure of the Confidential Information or Discussion Information or other reliable assurance that confidential treatment will be accorded to such portion of the Confidential Information or Discussion Information, as applicable, that is required to be disclosed.
10. Definitive Agreement. Unless and until a definitive written agreement between the Receiving Party and the Company with respect to a Transaction has been executed and delivered, neither the Receiving Party nor the Company will be under
any legal obligation of any kind whatsoever with respect to such a Transaction by virtue of this or any other written or oral expression by either of them or their Representatives except, in the case of this Agreement, for the matters specifically agreed to herein.
11. Remedies. Each of the parties hereto acknowledges that in the event of any breach of the terms of this Agreement, the other party could not be made whole by monetary damages only. Accordingly, each of the parties hereto, in addition to any other remedy to which it may be entitled in law or in equity, shall be entitled to an injunction (which shall include a temporary restraining order) to prevent breaches of the terms of this Agreement.
12. Communications. Without the Company’s prior written consent, which may be withheld by the Company in its sole discretion, the Receiving Party shall not (and shall cause its Representatives not to) initiate, other than through the Company’s financial and legal advisors or such other persons, as designated by the Company in writing, any (a) communication concerning the Confidential Information, (b) requests for meetings with management of the Company in connection with the possible Transaction or other transaction between the parties or (c) communication relating to the business of the Company or the possible Transaction, in each case, with any officer, director or employee of the Company.
13. Securities Laws. The Receiving Party acknowledges that it is aware and that the Receiving Party and its Representatives have been advised that the United States securities laws prohibit any person having non-public material information about a company from purchasing or selling securities of that company or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities.
14. Entire Agreement; Amendments. This Agreement represents the entire understanding and agreement of the parties hereto with respect to the matters contained herein, and may be amended, modified or waived only by a separate writing executed by the Receiving Party and the Company expressly so amending, modifying or waiving this Agreement. This Agreement shall inure to the benefit of and be binding upon the parties and their respective successors and assigns.
15. No Waiver. No failure or delay by either party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder.
16. Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of New York, without regard to the laws of conflict of laws. Each of the parties hereto: (a) irrevocably and unconditionally consents and submits to the jurisdiction of the state and federal courts located in the State of New York for purposes of any action, suit or proceeding arising out of or relating to this Agreement; (b) agrees that service of any process, summons, notice or document by U.S. registered mail to the address set forth at the end of this Agreement shall be effective service of process for any action, suit or proceeding brought against such party; (c) irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of or relating to this Agreement in any state or federal court located in the State of New York; and (d) irrevocably and unconditionally waives the right to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any action, suit or proceeding arising out of or relating to this Agreement that is brought in any state or federal court located in the State of New York has been brought in an inconvenient forum.
17. Expenses. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines that a party has breached this Agreement, then such party shall be liable and pay to the non-breaching party the legal fees and expenses such non-breaching party has incurred in connection with such litigation, including any appeal therefrom.
18. Captions. The Captions contained in this Agreement are for convenience only and shall not affect the construction or interpretation of any provisions of this Agreement.
19. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same Agreement.
20. Severability. In the event any term of this Agreement is found by any court to be void or otherwise unenforceable, the remainder of this Agreement shall remain valid and enforceable as though such term were absent upon the date of its execution.
21. Notices. All notices and other communications required or permitted hereunder will be in writing and will be deemed to have been duly given when delivered in person or when dispatched by email or electronic facsimile transfer (with such facsimile confirmed in writing by mail simultaneously dispatched) to the Company at the address specified below:
The Talbots, Inc.
Attention: Chief Operating Officer
One Talbots Drive
Hingham, MA 02043
Telephone: 781-741-7600
Facsimile: 781-741-4927
with copies to:
The Talbots, Inc.
Attention: General Counsel
211 South Ridge St.
Rye Brook, NY 10573
Telephone: 914-934-8877
Facsimile: 914-934-9136
and
Dewey & LeBoeuf LLP
Attention: Morton A. Pierce, Esq.
Chang-Do Gong, Esq.
1301 Avenue of the Americas
New York, NY 10019
Telephone: 212-259-8000
Facsimile: 212-259-6333
22. Non-Private Equity Affiliates. Notwithstanding anything to the contrary provided elsewhere herein, none of the provisions of this Agreement shall in any way limit the ordinary course business services and activities of the Receiving Party and its affiliates; provided, that (a) such services and activities are distinct from the private equity business and (b) the Confidential Information is not made available to Representatives of the Receiving Party and its affiliates who are not involved in the private equity business or who are engaged in investments that are not private equity investments and such ordinary course business services and activities are otherwise conducted without any reference to, or use of, the Confidential Information. The Receiving Party further represents to the Company that the Receiving Party has implemented appropriate internal restrictions on the sharing of confidential information (including, without limitation, the implementation of ethical walls around certain affiliates, to comply with federal securities laws of the United States).
23. Termination. Except as otherwise specified herein, the obligations of the parties set forth in this Agreement shall terminate and be of no further force and effect eighteen months from the date hereof.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, THIS AGREEMENT is executed and delivered effective as of the date first written above.
THE TALBOTS, INC.
By /s/ Richard T. O’Connell, Jr.
Name: Richard T. O’Connell, Jr.
Title: Executive Vice President
SYCAMORE PARTNERS MANAGEMENT, L.L.C.
By /s/ Stefan Kaluzny
Name: /s/ Stefan Kaluzny
Title: Managing Director
| Entailment |
538_nda-12 | 538_nda-12_0 | Q: Receiving Party may independently develop information similar to Confidential Information.
Text: STRICTLY CONFIDENTIAL
January 27, 2012
Sycamore Partners Management, L.L.C.
9 West 57 Street, 31 Floorthst
New York, New York 10019
Attention: Stefan Kaluzny
Managing Director
Dear Mr. Kaluzny:
CONFIDENTIALITY AGREEMENT
This Confidentiality Agreement (this “Agreement”) is dated as of January 27, 2012 by and between Sycamore Partners Management, L.L.C., a Delaware limited liability company (the “Receiving Party”) and The Talbots, Inc., a Delaware corporation (together with its subsidiaries, the “Company”).
1. Confidential Information; Representatives. (a) The Receiving Party is considering a possible business combination transaction (whether negotiated directly with the Company’s Board of Directors or otherwise) with respect to the Company (the “Transaction”), and, in order to assist the Receiving Party in evaluating the possible Transaction, the Company is prepared to make available to the Receiving Party certain information concerning the business, operations, strategy and prospects of the Company (all such information, the “Confidential Information”). As a condition to the Confidential Information being furnished to the Receiving Party and the directors, officers, principals, partners, members, employees, agents, consultants, related investment funds, advisors, attorneys, accountants, affiliates, potential sources of capital and financing, and financial advisors (collectively, “Representatives”) of the Receiving Party, the Receiving Party agrees to treat the Confidential Information strictly in accordance with the provisions of this Agreement and to otherwise comply, and to cause its Representatives to comply, with all obligations hereinafter set forth.
(b) The term “Confidential Information” shall include, without limitation, any and all information concerning the Company and its business, operations, strategic initiatives, financing, employees, strategies or prospects that is furnished to the Receiving Party or its Representatives by or on behalf of the Company, whether furnished before or after the date of this Agreement, including, without limitation, any written or oral analyses, business or strategic plans, compilations, studies, data, reports, interpretations, projections, forecasts, records, notes, copies, excerpts, memoranda, documents or other materials (in whatever form maintained or conveyed, whether documentary, computerized, verbal form or otherwise), that contain or otherwise reflect Confidential Information concerning the Company or its business, operations, strategic
initiatives, financing, employees, strategies or prospects prepared by or on behalf of the Receiving Party, any of the Receiving Party’s Representatives, the Company or any Company Representatives (as defined below) or that otherwise reflect any conversations with Company Representatives involving or relating to the Confidential Information.
2. Excluded Information. The Confidential Information shall not include information that the Receiving Party can demonstrate (a) is or becomes available to the public other than as a result of acts by the Receiving Party or its Representatives in breach of the terms of this Agreement, (b) was in the Receiving Party’s possession prior to disclosure by the Company, provided that such information, to the Receiving Party’s knowledge, was not subject to another confidentiality agreement with the Company or another party, (c) has been independently developed by the Receiving Party without reference to, or the use of, any Confidential Information or (d) is disclosed to the Receiving Party by a third party, to the Receiving Party’s knowledge, not bound by any duty or obligation of confidentiality on a non-confidential basis.
3. Limitations on Use and Disclosure of Confidential Information. (a) The Receiving Party shall, and shall cause its Representatives to, use the Confidential Information solely for the purpose of evaluating a possible Transaction. The Receiving Party shall, and shall cause its Representatives to, keep the Confidential Information in confidence and shall not disclose any of the Confidential Information in any manner whatsoever; provided, however, that (i) the Receiving Party may make disclosure of information contained in the Confidential Information if required by applicable law, regulation or legal or regulatory process; provided, that the Receiving Party shall have first complied with the terms of Section 9 hereof, (ii) the Receiving Party may make disclosure of information contained in the Confidential Information to the extent that the Company gives its prior written consent, and (iii) any information contained in the Confidential Information may be disclosed to the Receiving Party’s Representatives who reasonably require access to such information for the purpose of evaluating a possible Transaction and who agree to keep such information in confidence to the same extent as described herein; provided, further, that the Receiving Party shall not make any disclosure of any Confidential Information to any potential sources of equity financing without the Company’s prior written consent. The Receiving Party shall be responsible for any breach of the terms of this Agreement by the Receiving Party or by any of its Representatives.
(b) The Receiving Party agrees that, for a period of eighteen months from the date of this Agreement, the Receiving Party shall not (and shall cause its affiliates, subject to Section 22 hereof, not to), directly or indirectly, (i) use the Confidential Information to divert or attempt to divert any business or customer of the Company or (ii) employ or solicit, or initiate contact for employment with, any (A) director, officer or other senior or key employee of the Company or (B) any other employee of the Company whom the Receiving Party meets during its evaluation of the possible Transaction or about whom the Receiving Party receives Confidential Information; provided, however, a general advertisement or other recruiting efforts not specifically targeting any such employees of the Company shall not be considered a solicitation or unauthorized hiring.
(c) If the Receiving Party discovers any unauthorized disclosure or use of any Confidential Information by it or its Representatives, the Receiving Party hereby covenants to promptly notify the Company in writing of any such unauthorized disclosure or use.
4. Non-Disclosure of Existence of Negotiations. Without the prior written consent of the Company or except as may be required by applicable law or regulation, the Receiving Party and its Representatives shall not disclose to any person that any discussions or negotiations are taking place between the parties concerning a possible Transaction, including the content, timing and status of such discussions or negotiations (the “Discussion Information”).
5. No Representations by the Company. The Company will have the exclusive authority to decide what Confidential Information (if any) is to be made available to the Receiving Party and its Representatives. Neither the Company nor any of its directors, officers, employees, agents, consultants, advisors, attorneys, accountants and affiliates (collectively, the “Company Representatives”) will be under any obligation to make any particular Confidential Information available to the Receiving Party or any of the Receiving Party’s Representatives or to supplement or update any Confidential Information previously furnished. Neither the Company nor any of the Company Representatives has made or is making any representation or warranty, express or implied, as to the accuracy or completeness of any Confidential Information, and neither the Company nor any of the Company Representatives will have any liability to the Receiving Party or to any of the Receiving Party’s Representatives relating to or resulting from the use of any Confidential Information or any inaccuracies or errors therein or omissions therefrom. Only those representations and warranties (if any) that are included in any final definitive written agreement that provides for the consummation of a negotiated transaction between the Receiving Party and the Company and is validly executed on behalf of the Receiving Party and the Company will have legal effect.
6. Standstill Agreement. In consideration of the Confidential Information being furnished to the Receiving Party pursuant to this Agreement, the Receiving Party agrees that, for a period of one year from the date of this Agreement (or, such shorter period agreed to by the Company with a third party who is provided access to the Confidential Information for the purpose of evaluating a possible Transaction, the “Standstill Period”), unless expressly requested by the Company or its Board of Directors (or any committee thereof) in writing, the Receiving Party shall not (and shall cause its affiliates not to and shall cause its and their respective Representatives acting at its and their respective behalf not to): (a) in any manner acting alone or in concert with others, acquire, agree to acquire or make any proposal to acquire, directly or indirectly, by means of purchase, merger, business combination or in any other manner, beneficial ownership of any securities of the Company, direct or indirect rights to acquire any securities of the Company (including any derivative securities with economic equivalents of ownership of any of such securities), any right to vote or to direct the voting of any securities of the Company or any assets of the Company, (b) make, or in any way participate in, directly or indirectly, any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote, or seek to advise or influence any person with respect to the voting of, any voting securities of the Company, (c) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) with respect to any voting securities of the Company, other than any group comprised solely of the Receiving Party and its affiliates, (d) otherwise act, alone or in concert with others, to seek to control, advise, change or influence the management, board of directors, governing instruments, policies or affairs of the Company, (e) make any public disclosure, or take any action that could require the Company to make any public disclosure, with respect to any of the matters set forth in this Agreement, other than the required amendment to the Receiving Party’s Schedule 13D filing as a result of the execution and delivery of this Agreement, (f) disclose any intention, plan or arrangement inconsistent with the foregoing or (g) have any discussions or enter into any arrangements (whether written or oral) with, or advise, assist or encourage any other persons in connection with any of the foregoing. The Receiving Party also agrees during such period not to request the Company or any of the Company Representatives, directly or indirectly, to amend or waive any provision of this Section 6 (including this sentence). Notwithstanding any provision in this Agreement to the contrary, (i) the Standstill Period shall terminate immediately if, after the date of this Agreement, (A) the Company enters into a definitive agreement with a third party to effectuate a sale of 50% or more of the consolidated assets of the Company or 50% or more of the Company’s outstanding equity securities, (B) the Company publicly announces the conclusion of its previously announced strategic review process without a definitive agreement to sell the Company, (C) the Company makes an assignment for the benefit of creditors or commences any proceeding under any bankruptcy reorganization, insolvency, dissolution or liquidation law of any jurisdiction or (D) any bankruptcy petition is filed or any such proceeding is commenced against the Company and either (1) the Company indicates its approval thereof, consent thereto or acquiescence therein, or (2) such petition application or proceeding is not dismissed within 30 days and (ii) the Standstill Period solely with respect to clause (b) of this Section 6 shall terminate ten days prior to the expiration of the applicable time period for stockholders to nominate directors for election at the Company’s 2012 annual stockholders meeting to be scheduled in accordance with Section 8 hereof (and, for the avoidance of doubt, the restrictions in clauses (c), (d), (e), (f) and (g) of this Section 6 shall not apply to the activities that were previously expressly prohibited by clause (b) of this Section 6 in the event the restrictions in clause (b) are terminated pursuant to this clause (ii)).
7. Return of Confidential Information. Promptly upon the written request of the Company, the Receiving Party will return all copies of the Confidential Information to the Company, and all notes, studies, reports, memoranda and other documents or materials prepared by the Receiving Party or its Representatives that contain or reflect any Confidential Information shall be destroyed. Notwithstanding the return to the Company or destruction of Confidential Information pursuant to this Section 7, the Receiving Party and its Representatives will continue to be bound by their confidentiality obligations and other obligations under this Agreement for the term hereof. Notwithstanding the foregoing, (a) the Receiving Party’s legal department and/or outside counsel may keep one copy of the Confidential Information (in electronic or paper form) and, with respect to the Receiving Party’s Representatives who are accounting firms, such firms may keep one copy of the Confidential Information, in each case, if required to comply with applicable law or regulation and (b) the Receiving Party and its Representatives may retain Confidential Information to the extent it is “backed-up” on its or their (as the case may be) electronic information management and communications systems or servers, is not available to an end user and cannot be expunged without considerable effort; provided, that any such information so retained pursuant to clauses (a) and (b) of this Section 7 shall be held in compliance with the terms of this Agreement for a period of eighteen months from the date hereof.
8. 2012 Annual Stockholders Meeting. The Company agrees (a) that the meeting date for its 2012 annual stockholders meeting (with respect to the Company’s fiscal year ended January 28, 2012) will be held no earlier than thirty-one days after the first anniversary of the Company’s 2011 annual stockholders meeting (with respect to the Company’s fiscal year ended January 29, 2011) and (b) to provide the Receiving Party a copy of the press release announcing the date of its 2012 annual meeting on the date such press release is publicly issued.
9. Subpoena or Court Order. In the event that the Receiving Party or anyone to whom it discloses the Confidential Information receives a request to disclose all or any part of the Confidential Information or Discussion Information under the terms of a subpoena or other order issued by a court of competent jurisdiction or by another governmental agency, the Receiving Party shall if permitted pursuant to applicable law (a) promptly notify the Company of the existence, terms and circumstances surrounding such a request, (b) consult with the Company on the advisability of taking steps to resist or narrow such request, (c) if disclosure of such Confidential Information or Discussion Information is required, furnish only such portion of the Confidential Information or Discussion Information as the Receiving Party is advised by its legal counsel is legally required to be disclosed and (d) if requested by the Company, cooperate with the Company in its efforts to obtain a protective order or other relief to prevent the disclosure of the Confidential Information or Discussion Information or other reliable assurance that confidential treatment will be accorded to such portion of the Confidential Information or Discussion Information, as applicable, that is required to be disclosed.
10. Definitive Agreement. Unless and until a definitive written agreement between the Receiving Party and the Company with respect to a Transaction has been executed and delivered, neither the Receiving Party nor the Company will be under
any legal obligation of any kind whatsoever with respect to such a Transaction by virtue of this or any other written or oral expression by either of them or their Representatives except, in the case of this Agreement, for the matters specifically agreed to herein.
11. Remedies. Each of the parties hereto acknowledges that in the event of any breach of the terms of this Agreement, the other party could not be made whole by monetary damages only. Accordingly, each of the parties hereto, in addition to any other remedy to which it may be entitled in law or in equity, shall be entitled to an injunction (which shall include a temporary restraining order) to prevent breaches of the terms of this Agreement.
12. Communications. Without the Company’s prior written consent, which may be withheld by the Company in its sole discretion, the Receiving Party shall not (and shall cause its Representatives not to) initiate, other than through the Company’s financial and legal advisors or such other persons, as designated by the Company in writing, any (a) communication concerning the Confidential Information, (b) requests for meetings with management of the Company in connection with the possible Transaction or other transaction between the parties or (c) communication relating to the business of the Company or the possible Transaction, in each case, with any officer, director or employee of the Company.
13. Securities Laws. The Receiving Party acknowledges that it is aware and that the Receiving Party and its Representatives have been advised that the United States securities laws prohibit any person having non-public material information about a company from purchasing or selling securities of that company or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities.
14. Entire Agreement; Amendments. This Agreement represents the entire understanding and agreement of the parties hereto with respect to the matters contained herein, and may be amended, modified or waived only by a separate writing executed by the Receiving Party and the Company expressly so amending, modifying or waiving this Agreement. This Agreement shall inure to the benefit of and be binding upon the parties and their respective successors and assigns.
15. No Waiver. No failure or delay by either party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder.
16. Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of New York, without regard to the laws of conflict of laws. Each of the parties hereto: (a) irrevocably and unconditionally consents and submits to the jurisdiction of the state and federal courts located in the State of New York for purposes of any action, suit or proceeding arising out of or relating to this Agreement; (b) agrees that service of any process, summons, notice or document by U.S. registered mail to the address set forth at the end of this Agreement shall be effective service of process for any action, suit or proceeding brought against such party; (c) irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of or relating to this Agreement in any state or federal court located in the State of New York; and (d) irrevocably and unconditionally waives the right to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any action, suit or proceeding arising out of or relating to this Agreement that is brought in any state or federal court located in the State of New York has been brought in an inconvenient forum.
17. Expenses. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines that a party has breached this Agreement, then such party shall be liable and pay to the non-breaching party the legal fees and expenses such non-breaching party has incurred in connection with such litigation, including any appeal therefrom.
18. Captions. The Captions contained in this Agreement are for convenience only and shall not affect the construction or interpretation of any provisions of this Agreement.
19. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same Agreement.
20. Severability. In the event any term of this Agreement is found by any court to be void or otherwise unenforceable, the remainder of this Agreement shall remain valid and enforceable as though such term were absent upon the date of its execution.
21. Notices. All notices and other communications required or permitted hereunder will be in writing and will be deemed to have been duly given when delivered in person or when dispatched by email or electronic facsimile transfer (with such facsimile confirmed in writing by mail simultaneously dispatched) to the Company at the address specified below:
The Talbots, Inc.
Attention: Chief Operating Officer
One Talbots Drive
Hingham, MA 02043
Telephone: 781-741-7600
Facsimile: 781-741-4927
with copies to:
The Talbots, Inc.
Attention: General Counsel
211 South Ridge St.
Rye Brook, NY 10573
Telephone: 914-934-8877
Facsimile: 914-934-9136
and
Dewey & LeBoeuf LLP
Attention: Morton A. Pierce, Esq.
Chang-Do Gong, Esq.
1301 Avenue of the Americas
New York, NY 10019
Telephone: 212-259-8000
Facsimile: 212-259-6333
22. Non-Private Equity Affiliates. Notwithstanding anything to the contrary provided elsewhere herein, none of the provisions of this Agreement shall in any way limit the ordinary course business services and activities of the Receiving Party and its affiliates; provided, that (a) such services and activities are distinct from the private equity business and (b) the Confidential Information is not made available to Representatives of the Receiving Party and its affiliates who are not involved in the private equity business or who are engaged in investments that are not private equity investments and such ordinary course business services and activities are otherwise conducted without any reference to, or use of, the Confidential Information. The Receiving Party further represents to the Company that the Receiving Party has implemented appropriate internal restrictions on the sharing of confidential information (including, without limitation, the implementation of ethical walls around certain affiliates, to comply with federal securities laws of the United States).
23. Termination. Except as otherwise specified herein, the obligations of the parties set forth in this Agreement shall terminate and be of no further force and effect eighteen months from the date hereof.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, THIS AGREEMENT is executed and delivered effective as of the date first written above.
THE TALBOTS, INC.
By /s/ Richard T. O’Connell, Jr.
Name: Richard T. O’Connell, Jr.
Title: Executive Vice President
SYCAMORE PARTNERS MANAGEMENT, L.L.C.
By /s/ Stefan Kaluzny
Name: /s/ Stefan Kaluzny
Title: Managing Director
| Entailment |
538_nda-20 | 538_nda-20_0 | Q: Receiving Party may retain some Confidential Information even after the return or destruction of Confidential Information.
Text: STRICTLY CONFIDENTIAL
January 27, 2012
Sycamore Partners Management, L.L.C.
9 West 57 Street, 31 Floorthst
New York, New York 10019
Attention: Stefan Kaluzny
Managing Director
Dear Mr. Kaluzny:
CONFIDENTIALITY AGREEMENT
This Confidentiality Agreement (this “Agreement”) is dated as of January 27, 2012 by and between Sycamore Partners Management, L.L.C., a Delaware limited liability company (the “Receiving Party”) and The Talbots, Inc., a Delaware corporation (together with its subsidiaries, the “Company”).
1. Confidential Information; Representatives. (a) The Receiving Party is considering a possible business combination transaction (whether negotiated directly with the Company’s Board of Directors or otherwise) with respect to the Company (the “Transaction”), and, in order to assist the Receiving Party in evaluating the possible Transaction, the Company is prepared to make available to the Receiving Party certain information concerning the business, operations, strategy and prospects of the Company (all such information, the “Confidential Information”). As a condition to the Confidential Information being furnished to the Receiving Party and the directors, officers, principals, partners, members, employees, agents, consultants, related investment funds, advisors, attorneys, accountants, affiliates, potential sources of capital and financing, and financial advisors (collectively, “Representatives”) of the Receiving Party, the Receiving Party agrees to treat the Confidential Information strictly in accordance with the provisions of this Agreement and to otherwise comply, and to cause its Representatives to comply, with all obligations hereinafter set forth.
(b) The term “Confidential Information” shall include, without limitation, any and all information concerning the Company and its business, operations, strategic initiatives, financing, employees, strategies or prospects that is furnished to the Receiving Party or its Representatives by or on behalf of the Company, whether furnished before or after the date of this Agreement, including, without limitation, any written or oral analyses, business or strategic plans, compilations, studies, data, reports, interpretations, projections, forecasts, records, notes, copies, excerpts, memoranda, documents or other materials (in whatever form maintained or conveyed, whether documentary, computerized, verbal form or otherwise), that contain or otherwise reflect Confidential Information concerning the Company or its business, operations, strategic
initiatives, financing, employees, strategies or prospects prepared by or on behalf of the Receiving Party, any of the Receiving Party’s Representatives, the Company or any Company Representatives (as defined below) or that otherwise reflect any conversations with Company Representatives involving or relating to the Confidential Information.
2. Excluded Information. The Confidential Information shall not include information that the Receiving Party can demonstrate (a) is or becomes available to the public other than as a result of acts by the Receiving Party or its Representatives in breach of the terms of this Agreement, (b) was in the Receiving Party’s possession prior to disclosure by the Company, provided that such information, to the Receiving Party’s knowledge, was not subject to another confidentiality agreement with the Company or another party, (c) has been independently developed by the Receiving Party without reference to, or the use of, any Confidential Information or (d) is disclosed to the Receiving Party by a third party, to the Receiving Party’s knowledge, not bound by any duty or obligation of confidentiality on a non-confidential basis.
3. Limitations on Use and Disclosure of Confidential Information. (a) The Receiving Party shall, and shall cause its Representatives to, use the Confidential Information solely for the purpose of evaluating a possible Transaction. The Receiving Party shall, and shall cause its Representatives to, keep the Confidential Information in confidence and shall not disclose any of the Confidential Information in any manner whatsoever; provided, however, that (i) the Receiving Party may make disclosure of information contained in the Confidential Information if required by applicable law, regulation or legal or regulatory process; provided, that the Receiving Party shall have first complied with the terms of Section 9 hereof, (ii) the Receiving Party may make disclosure of information contained in the Confidential Information to the extent that the Company gives its prior written consent, and (iii) any information contained in the Confidential Information may be disclosed to the Receiving Party’s Representatives who reasonably require access to such information for the purpose of evaluating a possible Transaction and who agree to keep such information in confidence to the same extent as described herein; provided, further, that the Receiving Party shall not make any disclosure of any Confidential Information to any potential sources of equity financing without the Company’s prior written consent. The Receiving Party shall be responsible for any breach of the terms of this Agreement by the Receiving Party or by any of its Representatives.
(b) The Receiving Party agrees that, for a period of eighteen months from the date of this Agreement, the Receiving Party shall not (and shall cause its affiliates, subject to Section 22 hereof, not to), directly or indirectly, (i) use the Confidential Information to divert or attempt to divert any business or customer of the Company or (ii) employ or solicit, or initiate contact for employment with, any (A) director, officer or other senior or key employee of the Company or (B) any other employee of the Company whom the Receiving Party meets during its evaluation of the possible Transaction or about whom the Receiving Party receives Confidential Information; provided, however, a general advertisement or other recruiting efforts not specifically targeting any such employees of the Company shall not be considered a solicitation or unauthorized hiring.
(c) If the Receiving Party discovers any unauthorized disclosure or use of any Confidential Information by it or its Representatives, the Receiving Party hereby covenants to promptly notify the Company in writing of any such unauthorized disclosure or use.
4. Non-Disclosure of Existence of Negotiations. Without the prior written consent of the Company or except as may be required by applicable law or regulation, the Receiving Party and its Representatives shall not disclose to any person that any discussions or negotiations are taking place between the parties concerning a possible Transaction, including the content, timing and status of such discussions or negotiations (the “Discussion Information”).
5. No Representations by the Company. The Company will have the exclusive authority to decide what Confidential Information (if any) is to be made available to the Receiving Party and its Representatives. Neither the Company nor any of its directors, officers, employees, agents, consultants, advisors, attorneys, accountants and affiliates (collectively, the “Company Representatives”) will be under any obligation to make any particular Confidential Information available to the Receiving Party or any of the Receiving Party’s Representatives or to supplement or update any Confidential Information previously furnished. Neither the Company nor any of the Company Representatives has made or is making any representation or warranty, express or implied, as to the accuracy or completeness of any Confidential Information, and neither the Company nor any of the Company Representatives will have any liability to the Receiving Party or to any of the Receiving Party’s Representatives relating to or resulting from the use of any Confidential Information or any inaccuracies or errors therein or omissions therefrom. Only those representations and warranties (if any) that are included in any final definitive written agreement that provides for the consummation of a negotiated transaction between the Receiving Party and the Company and is validly executed on behalf of the Receiving Party and the Company will have legal effect.
6. Standstill Agreement. In consideration of the Confidential Information being furnished to the Receiving Party pursuant to this Agreement, the Receiving Party agrees that, for a period of one year from the date of this Agreement (or, such shorter period agreed to by the Company with a third party who is provided access to the Confidential Information for the purpose of evaluating a possible Transaction, the “Standstill Period”), unless expressly requested by the Company or its Board of Directors (or any committee thereof) in writing, the Receiving Party shall not (and shall cause its affiliates not to and shall cause its and their respective Representatives acting at its and their respective behalf not to): (a) in any manner acting alone or in concert with others, acquire, agree to acquire or make any proposal to acquire, directly or indirectly, by means of purchase, merger, business combination or in any other manner, beneficial ownership of any securities of the Company, direct or indirect rights to acquire any securities of the Company (including any derivative securities with economic equivalents of ownership of any of such securities), any right to vote or to direct the voting of any securities of the Company or any assets of the Company, (b) make, or in any way participate in, directly or indirectly, any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote, or seek to advise or influence any person with respect to the voting of, any voting securities of the Company, (c) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) with respect to any voting securities of the Company, other than any group comprised solely of the Receiving Party and its affiliates, (d) otherwise act, alone or in concert with others, to seek to control, advise, change or influence the management, board of directors, governing instruments, policies or affairs of the Company, (e) make any public disclosure, or take any action that could require the Company to make any public disclosure, with respect to any of the matters set forth in this Agreement, other than the required amendment to the Receiving Party’s Schedule 13D filing as a result of the execution and delivery of this Agreement, (f) disclose any intention, plan or arrangement inconsistent with the foregoing or (g) have any discussions or enter into any arrangements (whether written or oral) with, or advise, assist or encourage any other persons in connection with any of the foregoing. The Receiving Party also agrees during such period not to request the Company or any of the Company Representatives, directly or indirectly, to amend or waive any provision of this Section 6 (including this sentence). Notwithstanding any provision in this Agreement to the contrary, (i) the Standstill Period shall terminate immediately if, after the date of this Agreement, (A) the Company enters into a definitive agreement with a third party to effectuate a sale of 50% or more of the consolidated assets of the Company or 50% or more of the Company’s outstanding equity securities, (B) the Company publicly announces the conclusion of its previously announced strategic review process without a definitive agreement to sell the Company, (C) the Company makes an assignment for the benefit of creditors or commences any proceeding under any bankruptcy reorganization, insolvency, dissolution or liquidation law of any jurisdiction or (D) any bankruptcy petition is filed or any such proceeding is commenced against the Company and either (1) the Company indicates its approval thereof, consent thereto or acquiescence therein, or (2) such petition application or proceeding is not dismissed within 30 days and (ii) the Standstill Period solely with respect to clause (b) of this Section 6 shall terminate ten days prior to the expiration of the applicable time period for stockholders to nominate directors for election at the Company’s 2012 annual stockholders meeting to be scheduled in accordance with Section 8 hereof (and, for the avoidance of doubt, the restrictions in clauses (c), (d), (e), (f) and (g) of this Section 6 shall not apply to the activities that were previously expressly prohibited by clause (b) of this Section 6 in the event the restrictions in clause (b) are terminated pursuant to this clause (ii)).
7. Return of Confidential Information. Promptly upon the written request of the Company, the Receiving Party will return all copies of the Confidential Information to the Company, and all notes, studies, reports, memoranda and other documents or materials prepared by the Receiving Party or its Representatives that contain or reflect any Confidential Information shall be destroyed. Notwithstanding the return to the Company or destruction of Confidential Information pursuant to this Section 7, the Receiving Party and its Representatives will continue to be bound by their confidentiality obligations and other obligations under this Agreement for the term hereof. Notwithstanding the foregoing, (a) the Receiving Party’s legal department and/or outside counsel may keep one copy of the Confidential Information (in electronic or paper form) and, with respect to the Receiving Party’s Representatives who are accounting firms, such firms may keep one copy of the Confidential Information, in each case, if required to comply with applicable law or regulation and (b) the Receiving Party and its Representatives may retain Confidential Information to the extent it is “backed-up” on its or their (as the case may be) electronic information management and communications systems or servers, is not available to an end user and cannot be expunged without considerable effort; provided, that any such information so retained pursuant to clauses (a) and (b) of this Section 7 shall be held in compliance with the terms of this Agreement for a period of eighteen months from the date hereof.
8. 2012 Annual Stockholders Meeting. The Company agrees (a) that the meeting date for its 2012 annual stockholders meeting (with respect to the Company’s fiscal year ended January 28, 2012) will be held no earlier than thirty-one days after the first anniversary of the Company’s 2011 annual stockholders meeting (with respect to the Company’s fiscal year ended January 29, 2011) and (b) to provide the Receiving Party a copy of the press release announcing the date of its 2012 annual meeting on the date such press release is publicly issued.
9. Subpoena or Court Order. In the event that the Receiving Party or anyone to whom it discloses the Confidential Information receives a request to disclose all or any part of the Confidential Information or Discussion Information under the terms of a subpoena or other order issued by a court of competent jurisdiction or by another governmental agency, the Receiving Party shall if permitted pursuant to applicable law (a) promptly notify the Company of the existence, terms and circumstances surrounding such a request, (b) consult with the Company on the advisability of taking steps to resist or narrow such request, (c) if disclosure of such Confidential Information or Discussion Information is required, furnish only such portion of the Confidential Information or Discussion Information as the Receiving Party is advised by its legal counsel is legally required to be disclosed and (d) if requested by the Company, cooperate with the Company in its efforts to obtain a protective order or other relief to prevent the disclosure of the Confidential Information or Discussion Information or other reliable assurance that confidential treatment will be accorded to such portion of the Confidential Information or Discussion Information, as applicable, that is required to be disclosed.
10. Definitive Agreement. Unless and until a definitive written agreement between the Receiving Party and the Company with respect to a Transaction has been executed and delivered, neither the Receiving Party nor the Company will be under
any legal obligation of any kind whatsoever with respect to such a Transaction by virtue of this or any other written or oral expression by either of them or their Representatives except, in the case of this Agreement, for the matters specifically agreed to herein.
11. Remedies. Each of the parties hereto acknowledges that in the event of any breach of the terms of this Agreement, the other party could not be made whole by monetary damages only. Accordingly, each of the parties hereto, in addition to any other remedy to which it may be entitled in law or in equity, shall be entitled to an injunction (which shall include a temporary restraining order) to prevent breaches of the terms of this Agreement.
12. Communications. Without the Company’s prior written consent, which may be withheld by the Company in its sole discretion, the Receiving Party shall not (and shall cause its Representatives not to) initiate, other than through the Company’s financial and legal advisors or such other persons, as designated by the Company in writing, any (a) communication concerning the Confidential Information, (b) requests for meetings with management of the Company in connection with the possible Transaction or other transaction between the parties or (c) communication relating to the business of the Company or the possible Transaction, in each case, with any officer, director or employee of the Company.
13. Securities Laws. The Receiving Party acknowledges that it is aware and that the Receiving Party and its Representatives have been advised that the United States securities laws prohibit any person having non-public material information about a company from purchasing or selling securities of that company or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities.
14. Entire Agreement; Amendments. This Agreement represents the entire understanding and agreement of the parties hereto with respect to the matters contained herein, and may be amended, modified or waived only by a separate writing executed by the Receiving Party and the Company expressly so amending, modifying or waiving this Agreement. This Agreement shall inure to the benefit of and be binding upon the parties and their respective successors and assigns.
15. No Waiver. No failure or delay by either party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder.
16. Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of New York, without regard to the laws of conflict of laws. Each of the parties hereto: (a) irrevocably and unconditionally consents and submits to the jurisdiction of the state and federal courts located in the State of New York for purposes of any action, suit or proceeding arising out of or relating to this Agreement; (b) agrees that service of any process, summons, notice or document by U.S. registered mail to the address set forth at the end of this Agreement shall be effective service of process for any action, suit or proceeding brought against such party; (c) irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of or relating to this Agreement in any state or federal court located in the State of New York; and (d) irrevocably and unconditionally waives the right to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any action, suit or proceeding arising out of or relating to this Agreement that is brought in any state or federal court located in the State of New York has been brought in an inconvenient forum.
17. Expenses. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines that a party has breached this Agreement, then such party shall be liable and pay to the non-breaching party the legal fees and expenses such non-breaching party has incurred in connection with such litigation, including any appeal therefrom.
18. Captions. The Captions contained in this Agreement are for convenience only and shall not affect the construction or interpretation of any provisions of this Agreement.
19. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same Agreement.
20. Severability. In the event any term of this Agreement is found by any court to be void or otherwise unenforceable, the remainder of this Agreement shall remain valid and enforceable as though such term were absent upon the date of its execution.
21. Notices. All notices and other communications required or permitted hereunder will be in writing and will be deemed to have been duly given when delivered in person or when dispatched by email or electronic facsimile transfer (with such facsimile confirmed in writing by mail simultaneously dispatched) to the Company at the address specified below:
The Talbots, Inc.
Attention: Chief Operating Officer
One Talbots Drive
Hingham, MA 02043
Telephone: 781-741-7600
Facsimile: 781-741-4927
with copies to:
The Talbots, Inc.
Attention: General Counsel
211 South Ridge St.
Rye Brook, NY 10573
Telephone: 914-934-8877
Facsimile: 914-934-9136
and
Dewey & LeBoeuf LLP
Attention: Morton A. Pierce, Esq.
Chang-Do Gong, Esq.
1301 Avenue of the Americas
New York, NY 10019
Telephone: 212-259-8000
Facsimile: 212-259-6333
22. Non-Private Equity Affiliates. Notwithstanding anything to the contrary provided elsewhere herein, none of the provisions of this Agreement shall in any way limit the ordinary course business services and activities of the Receiving Party and its affiliates; provided, that (a) such services and activities are distinct from the private equity business and (b) the Confidential Information is not made available to Representatives of the Receiving Party and its affiliates who are not involved in the private equity business or who are engaged in investments that are not private equity investments and such ordinary course business services and activities are otherwise conducted without any reference to, or use of, the Confidential Information. The Receiving Party further represents to the Company that the Receiving Party has implemented appropriate internal restrictions on the sharing of confidential information (including, without limitation, the implementation of ethical walls around certain affiliates, to comply with federal securities laws of the United States).
23. Termination. Except as otherwise specified herein, the obligations of the parties set forth in this Agreement shall terminate and be of no further force and effect eighteen months from the date hereof.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, THIS AGREEMENT is executed and delivered effective as of the date first written above.
THE TALBOTS, INC.
By /s/ Richard T. O’Connell, Jr.
Name: Richard T. O’Connell, Jr.
Title: Executive Vice President
SYCAMORE PARTNERS MANAGEMENT, L.L.C.
By /s/ Stefan Kaluzny
Name: /s/ Stefan Kaluzny
Title: Managing Director
| Entailment |
538_nda-3 | 538_nda-3_0 | Q: Confidential Information may include verbally conveyed information.
Text: STRICTLY CONFIDENTIAL
January 27, 2012
Sycamore Partners Management, L.L.C.
9 West 57 Street, 31 Floorthst
New York, New York 10019
Attention: Stefan Kaluzny
Managing Director
Dear Mr. Kaluzny:
CONFIDENTIALITY AGREEMENT
This Confidentiality Agreement (this “Agreement”) is dated as of January 27, 2012 by and between Sycamore Partners Management, L.L.C., a Delaware limited liability company (the “Receiving Party”) and The Talbots, Inc., a Delaware corporation (together with its subsidiaries, the “Company”).
1. Confidential Information; Representatives. (a) The Receiving Party is considering a possible business combination transaction (whether negotiated directly with the Company’s Board of Directors or otherwise) with respect to the Company (the “Transaction”), and, in order to assist the Receiving Party in evaluating the possible Transaction, the Company is prepared to make available to the Receiving Party certain information concerning the business, operations, strategy and prospects of the Company (all such information, the “Confidential Information”). As a condition to the Confidential Information being furnished to the Receiving Party and the directors, officers, principals, partners, members, employees, agents, consultants, related investment funds, advisors, attorneys, accountants, affiliates, potential sources of capital and financing, and financial advisors (collectively, “Representatives”) of the Receiving Party, the Receiving Party agrees to treat the Confidential Information strictly in accordance with the provisions of this Agreement and to otherwise comply, and to cause its Representatives to comply, with all obligations hereinafter set forth.
(b) The term “Confidential Information” shall include, without limitation, any and all information concerning the Company and its business, operations, strategic initiatives, financing, employees, strategies or prospects that is furnished to the Receiving Party or its Representatives by or on behalf of the Company, whether furnished before or after the date of this Agreement, including, without limitation, any written or oral analyses, business or strategic plans, compilations, studies, data, reports, interpretations, projections, forecasts, records, notes, copies, excerpts, memoranda, documents or other materials (in whatever form maintained or conveyed, whether documentary, computerized, verbal form or otherwise), that contain or otherwise reflect Confidential Information concerning the Company or its business, operations, strategic
initiatives, financing, employees, strategies or prospects prepared by or on behalf of the Receiving Party, any of the Receiving Party’s Representatives, the Company or any Company Representatives (as defined below) or that otherwise reflect any conversations with Company Representatives involving or relating to the Confidential Information.
2. Excluded Information. The Confidential Information shall not include information that the Receiving Party can demonstrate (a) is or becomes available to the public other than as a result of acts by the Receiving Party or its Representatives in breach of the terms of this Agreement, (b) was in the Receiving Party’s possession prior to disclosure by the Company, provided that such information, to the Receiving Party’s knowledge, was not subject to another confidentiality agreement with the Company or another party, (c) has been independently developed by the Receiving Party without reference to, or the use of, any Confidential Information or (d) is disclosed to the Receiving Party by a third party, to the Receiving Party’s knowledge, not bound by any duty or obligation of confidentiality on a non-confidential basis.
3. Limitations on Use and Disclosure of Confidential Information. (a) The Receiving Party shall, and shall cause its Representatives to, use the Confidential Information solely for the purpose of evaluating a possible Transaction. The Receiving Party shall, and shall cause its Representatives to, keep the Confidential Information in confidence and shall not disclose any of the Confidential Information in any manner whatsoever; provided, however, that (i) the Receiving Party may make disclosure of information contained in the Confidential Information if required by applicable law, regulation or legal or regulatory process; provided, that the Receiving Party shall have first complied with the terms of Section 9 hereof, (ii) the Receiving Party may make disclosure of information contained in the Confidential Information to the extent that the Company gives its prior written consent, and (iii) any information contained in the Confidential Information may be disclosed to the Receiving Party’s Representatives who reasonably require access to such information for the purpose of evaluating a possible Transaction and who agree to keep such information in confidence to the same extent as described herein; provided, further, that the Receiving Party shall not make any disclosure of any Confidential Information to any potential sources of equity financing without the Company’s prior written consent. The Receiving Party shall be responsible for any breach of the terms of this Agreement by the Receiving Party or by any of its Representatives.
(b) The Receiving Party agrees that, for a period of eighteen months from the date of this Agreement, the Receiving Party shall not (and shall cause its affiliates, subject to Section 22 hereof, not to), directly or indirectly, (i) use the Confidential Information to divert or attempt to divert any business or customer of the Company or (ii) employ or solicit, or initiate contact for employment with, any (A) director, officer or other senior or key employee of the Company or (B) any other employee of the Company whom the Receiving Party meets during its evaluation of the possible Transaction or about whom the Receiving Party receives Confidential Information; provided, however, a general advertisement or other recruiting efforts not specifically targeting any such employees of the Company shall not be considered a solicitation or unauthorized hiring.
(c) If the Receiving Party discovers any unauthorized disclosure or use of any Confidential Information by it or its Representatives, the Receiving Party hereby covenants to promptly notify the Company in writing of any such unauthorized disclosure or use.
4. Non-Disclosure of Existence of Negotiations. Without the prior written consent of the Company or except as may be required by applicable law or regulation, the Receiving Party and its Representatives shall not disclose to any person that any discussions or negotiations are taking place between the parties concerning a possible Transaction, including the content, timing and status of such discussions or negotiations (the “Discussion Information”).
5. No Representations by the Company. The Company will have the exclusive authority to decide what Confidential Information (if any) is to be made available to the Receiving Party and its Representatives. Neither the Company nor any of its directors, officers, employees, agents, consultants, advisors, attorneys, accountants and affiliates (collectively, the “Company Representatives”) will be under any obligation to make any particular Confidential Information available to the Receiving Party or any of the Receiving Party’s Representatives or to supplement or update any Confidential Information previously furnished. Neither the Company nor any of the Company Representatives has made or is making any representation or warranty, express or implied, as to the accuracy or completeness of any Confidential Information, and neither the Company nor any of the Company Representatives will have any liability to the Receiving Party or to any of the Receiving Party’s Representatives relating to or resulting from the use of any Confidential Information or any inaccuracies or errors therein or omissions therefrom. Only those representations and warranties (if any) that are included in any final definitive written agreement that provides for the consummation of a negotiated transaction between the Receiving Party and the Company and is validly executed on behalf of the Receiving Party and the Company will have legal effect.
6. Standstill Agreement. In consideration of the Confidential Information being furnished to the Receiving Party pursuant to this Agreement, the Receiving Party agrees that, for a period of one year from the date of this Agreement (or, such shorter period agreed to by the Company with a third party who is provided access to the Confidential Information for the purpose of evaluating a possible Transaction, the “Standstill Period”), unless expressly requested by the Company or its Board of Directors (or any committee thereof) in writing, the Receiving Party shall not (and shall cause its affiliates not to and shall cause its and their respective Representatives acting at its and their respective behalf not to): (a) in any manner acting alone or in concert with others, acquire, agree to acquire or make any proposal to acquire, directly or indirectly, by means of purchase, merger, business combination or in any other manner, beneficial ownership of any securities of the Company, direct or indirect rights to acquire any securities of the Company (including any derivative securities with economic equivalents of ownership of any of such securities), any right to vote or to direct the voting of any securities of the Company or any assets of the Company, (b) make, or in any way participate in, directly or indirectly, any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote, or seek to advise or influence any person with respect to the voting of, any voting securities of the Company, (c) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) with respect to any voting securities of the Company, other than any group comprised solely of the Receiving Party and its affiliates, (d) otherwise act, alone or in concert with others, to seek to control, advise, change or influence the management, board of directors, governing instruments, policies or affairs of the Company, (e) make any public disclosure, or take any action that could require the Company to make any public disclosure, with respect to any of the matters set forth in this Agreement, other than the required amendment to the Receiving Party’s Schedule 13D filing as a result of the execution and delivery of this Agreement, (f) disclose any intention, plan or arrangement inconsistent with the foregoing or (g) have any discussions or enter into any arrangements (whether written or oral) with, or advise, assist or encourage any other persons in connection with any of the foregoing. The Receiving Party also agrees during such period not to request the Company or any of the Company Representatives, directly or indirectly, to amend or waive any provision of this Section 6 (including this sentence). Notwithstanding any provision in this Agreement to the contrary, (i) the Standstill Period shall terminate immediately if, after the date of this Agreement, (A) the Company enters into a definitive agreement with a third party to effectuate a sale of 50% or more of the consolidated assets of the Company or 50% or more of the Company’s outstanding equity securities, (B) the Company publicly announces the conclusion of its previously announced strategic review process without a definitive agreement to sell the Company, (C) the Company makes an assignment for the benefit of creditors or commences any proceeding under any bankruptcy reorganization, insolvency, dissolution or liquidation law of any jurisdiction or (D) any bankruptcy petition is filed or any such proceeding is commenced against the Company and either (1) the Company indicates its approval thereof, consent thereto or acquiescence therein, or (2) such petition application or proceeding is not dismissed within 30 days and (ii) the Standstill Period solely with respect to clause (b) of this Section 6 shall terminate ten days prior to the expiration of the applicable time period for stockholders to nominate directors for election at the Company’s 2012 annual stockholders meeting to be scheduled in accordance with Section 8 hereof (and, for the avoidance of doubt, the restrictions in clauses (c), (d), (e), (f) and (g) of this Section 6 shall not apply to the activities that were previously expressly prohibited by clause (b) of this Section 6 in the event the restrictions in clause (b) are terminated pursuant to this clause (ii)).
7. Return of Confidential Information. Promptly upon the written request of the Company, the Receiving Party will return all copies of the Confidential Information to the Company, and all notes, studies, reports, memoranda and other documents or materials prepared by the Receiving Party or its Representatives that contain or reflect any Confidential Information shall be destroyed. Notwithstanding the return to the Company or destruction of Confidential Information pursuant to this Section 7, the Receiving Party and its Representatives will continue to be bound by their confidentiality obligations and other obligations under this Agreement for the term hereof. Notwithstanding the foregoing, (a) the Receiving Party’s legal department and/or outside counsel may keep one copy of the Confidential Information (in electronic or paper form) and, with respect to the Receiving Party’s Representatives who are accounting firms, such firms may keep one copy of the Confidential Information, in each case, if required to comply with applicable law or regulation and (b) the Receiving Party and its Representatives may retain Confidential Information to the extent it is “backed-up” on its or their (as the case may be) electronic information management and communications systems or servers, is not available to an end user and cannot be expunged without considerable effort; provided, that any such information so retained pursuant to clauses (a) and (b) of this Section 7 shall be held in compliance with the terms of this Agreement for a period of eighteen months from the date hereof.
8. 2012 Annual Stockholders Meeting. The Company agrees (a) that the meeting date for its 2012 annual stockholders meeting (with respect to the Company’s fiscal year ended January 28, 2012) will be held no earlier than thirty-one days after the first anniversary of the Company’s 2011 annual stockholders meeting (with respect to the Company’s fiscal year ended January 29, 2011) and (b) to provide the Receiving Party a copy of the press release announcing the date of its 2012 annual meeting on the date such press release is publicly issued.
9. Subpoena or Court Order. In the event that the Receiving Party or anyone to whom it discloses the Confidential Information receives a request to disclose all or any part of the Confidential Information or Discussion Information under the terms of a subpoena or other order issued by a court of competent jurisdiction or by another governmental agency, the Receiving Party shall if permitted pursuant to applicable law (a) promptly notify the Company of the existence, terms and circumstances surrounding such a request, (b) consult with the Company on the advisability of taking steps to resist or narrow such request, (c) if disclosure of such Confidential Information or Discussion Information is required, furnish only such portion of the Confidential Information or Discussion Information as the Receiving Party is advised by its legal counsel is legally required to be disclosed and (d) if requested by the Company, cooperate with the Company in its efforts to obtain a protective order or other relief to prevent the disclosure of the Confidential Information or Discussion Information or other reliable assurance that confidential treatment will be accorded to such portion of the Confidential Information or Discussion Information, as applicable, that is required to be disclosed.
10. Definitive Agreement. Unless and until a definitive written agreement between the Receiving Party and the Company with respect to a Transaction has been executed and delivered, neither the Receiving Party nor the Company will be under
any legal obligation of any kind whatsoever with respect to such a Transaction by virtue of this or any other written or oral expression by either of them or their Representatives except, in the case of this Agreement, for the matters specifically agreed to herein.
11. Remedies. Each of the parties hereto acknowledges that in the event of any breach of the terms of this Agreement, the other party could not be made whole by monetary damages only. Accordingly, each of the parties hereto, in addition to any other remedy to which it may be entitled in law or in equity, shall be entitled to an injunction (which shall include a temporary restraining order) to prevent breaches of the terms of this Agreement.
12. Communications. Without the Company’s prior written consent, which may be withheld by the Company in its sole discretion, the Receiving Party shall not (and shall cause its Representatives not to) initiate, other than through the Company’s financial and legal advisors or such other persons, as designated by the Company in writing, any (a) communication concerning the Confidential Information, (b) requests for meetings with management of the Company in connection with the possible Transaction or other transaction between the parties or (c) communication relating to the business of the Company or the possible Transaction, in each case, with any officer, director or employee of the Company.
13. Securities Laws. The Receiving Party acknowledges that it is aware and that the Receiving Party and its Representatives have been advised that the United States securities laws prohibit any person having non-public material information about a company from purchasing or selling securities of that company or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities.
14. Entire Agreement; Amendments. This Agreement represents the entire understanding and agreement of the parties hereto with respect to the matters contained herein, and may be amended, modified or waived only by a separate writing executed by the Receiving Party and the Company expressly so amending, modifying or waiving this Agreement. This Agreement shall inure to the benefit of and be binding upon the parties and their respective successors and assigns.
15. No Waiver. No failure or delay by either party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder.
16. Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of New York, without regard to the laws of conflict of laws. Each of the parties hereto: (a) irrevocably and unconditionally consents and submits to the jurisdiction of the state and federal courts located in the State of New York for purposes of any action, suit or proceeding arising out of or relating to this Agreement; (b) agrees that service of any process, summons, notice or document by U.S. registered mail to the address set forth at the end of this Agreement shall be effective service of process for any action, suit or proceeding brought against such party; (c) irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of or relating to this Agreement in any state or federal court located in the State of New York; and (d) irrevocably and unconditionally waives the right to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any action, suit or proceeding arising out of or relating to this Agreement that is brought in any state or federal court located in the State of New York has been brought in an inconvenient forum.
17. Expenses. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines that a party has breached this Agreement, then such party shall be liable and pay to the non-breaching party the legal fees and expenses such non-breaching party has incurred in connection with such litigation, including any appeal therefrom.
18. Captions. The Captions contained in this Agreement are for convenience only and shall not affect the construction or interpretation of any provisions of this Agreement.
19. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same Agreement.
20. Severability. In the event any term of this Agreement is found by any court to be void or otherwise unenforceable, the remainder of this Agreement shall remain valid and enforceable as though such term were absent upon the date of its execution.
21. Notices. All notices and other communications required or permitted hereunder will be in writing and will be deemed to have been duly given when delivered in person or when dispatched by email or electronic facsimile transfer (with such facsimile confirmed in writing by mail simultaneously dispatched) to the Company at the address specified below:
The Talbots, Inc.
Attention: Chief Operating Officer
One Talbots Drive
Hingham, MA 02043
Telephone: 781-741-7600
Facsimile: 781-741-4927
with copies to:
The Talbots, Inc.
Attention: General Counsel
211 South Ridge St.
Rye Brook, NY 10573
Telephone: 914-934-8877
Facsimile: 914-934-9136
and
Dewey & LeBoeuf LLP
Attention: Morton A. Pierce, Esq.
Chang-Do Gong, Esq.
1301 Avenue of the Americas
New York, NY 10019
Telephone: 212-259-8000
Facsimile: 212-259-6333
22. Non-Private Equity Affiliates. Notwithstanding anything to the contrary provided elsewhere herein, none of the provisions of this Agreement shall in any way limit the ordinary course business services and activities of the Receiving Party and its affiliates; provided, that (a) such services and activities are distinct from the private equity business and (b) the Confidential Information is not made available to Representatives of the Receiving Party and its affiliates who are not involved in the private equity business or who are engaged in investments that are not private equity investments and such ordinary course business services and activities are otherwise conducted without any reference to, or use of, the Confidential Information. The Receiving Party further represents to the Company that the Receiving Party has implemented appropriate internal restrictions on the sharing of confidential information (including, without limitation, the implementation of ethical walls around certain affiliates, to comply with federal securities laws of the United States).
23. Termination. Except as otherwise specified herein, the obligations of the parties set forth in this Agreement shall terminate and be of no further force and effect eighteen months from the date hereof.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, THIS AGREEMENT is executed and delivered effective as of the date first written above.
THE TALBOTS, INC.
By /s/ Richard T. O’Connell, Jr.
Name: Richard T. O’Connell, Jr.
Title: Executive Vice President
SYCAMORE PARTNERS MANAGEMENT, L.L.C.
By /s/ Stefan Kaluzny
Name: /s/ Stefan Kaluzny
Title: Managing Director
| Entailment |
538_nda-18 | 538_nda-18_0 | Q: Receiving Party shall not solicit some of Disclosing Party's representatives.
Text: STRICTLY CONFIDENTIAL
January 27, 2012
Sycamore Partners Management, L.L.C.
9 West 57 Street, 31 Floorthst
New York, New York 10019
Attention: Stefan Kaluzny
Managing Director
Dear Mr. Kaluzny:
CONFIDENTIALITY AGREEMENT
This Confidentiality Agreement (this “Agreement”) is dated as of January 27, 2012 by and between Sycamore Partners Management, L.L.C., a Delaware limited liability company (the “Receiving Party”) and The Talbots, Inc., a Delaware corporation (together with its subsidiaries, the “Company”).
1. Confidential Information; Representatives. (a) The Receiving Party is considering a possible business combination transaction (whether negotiated directly with the Company’s Board of Directors or otherwise) with respect to the Company (the “Transaction”), and, in order to assist the Receiving Party in evaluating the possible Transaction, the Company is prepared to make available to the Receiving Party certain information concerning the business, operations, strategy and prospects of the Company (all such information, the “Confidential Information”). As a condition to the Confidential Information being furnished to the Receiving Party and the directors, officers, principals, partners, members, employees, agents, consultants, related investment funds, advisors, attorneys, accountants, affiliates, potential sources of capital and financing, and financial advisors (collectively, “Representatives”) of the Receiving Party, the Receiving Party agrees to treat the Confidential Information strictly in accordance with the provisions of this Agreement and to otherwise comply, and to cause its Representatives to comply, with all obligations hereinafter set forth.
(b) The term “Confidential Information” shall include, without limitation, any and all information concerning the Company and its business, operations, strategic initiatives, financing, employees, strategies or prospects that is furnished to the Receiving Party or its Representatives by or on behalf of the Company, whether furnished before or after the date of this Agreement, including, without limitation, any written or oral analyses, business or strategic plans, compilations, studies, data, reports, interpretations, projections, forecasts, records, notes, copies, excerpts, memoranda, documents or other materials (in whatever form maintained or conveyed, whether documentary, computerized, verbal form or otherwise), that contain or otherwise reflect Confidential Information concerning the Company or its business, operations, strategic
initiatives, financing, employees, strategies or prospects prepared by or on behalf of the Receiving Party, any of the Receiving Party’s Representatives, the Company or any Company Representatives (as defined below) or that otherwise reflect any conversations with Company Representatives involving or relating to the Confidential Information.
2. Excluded Information. The Confidential Information shall not include information that the Receiving Party can demonstrate (a) is or becomes available to the public other than as a result of acts by the Receiving Party or its Representatives in breach of the terms of this Agreement, (b) was in the Receiving Party’s possession prior to disclosure by the Company, provided that such information, to the Receiving Party’s knowledge, was not subject to another confidentiality agreement with the Company or another party, (c) has been independently developed by the Receiving Party without reference to, or the use of, any Confidential Information or (d) is disclosed to the Receiving Party by a third party, to the Receiving Party’s knowledge, not bound by any duty or obligation of confidentiality on a non-confidential basis.
3. Limitations on Use and Disclosure of Confidential Information. (a) The Receiving Party shall, and shall cause its Representatives to, use the Confidential Information solely for the purpose of evaluating a possible Transaction. The Receiving Party shall, and shall cause its Representatives to, keep the Confidential Information in confidence and shall not disclose any of the Confidential Information in any manner whatsoever; provided, however, that (i) the Receiving Party may make disclosure of information contained in the Confidential Information if required by applicable law, regulation or legal or regulatory process; provided, that the Receiving Party shall have first complied with the terms of Section 9 hereof, (ii) the Receiving Party may make disclosure of information contained in the Confidential Information to the extent that the Company gives its prior written consent, and (iii) any information contained in the Confidential Information may be disclosed to the Receiving Party’s Representatives who reasonably require access to such information for the purpose of evaluating a possible Transaction and who agree to keep such information in confidence to the same extent as described herein; provided, further, that the Receiving Party shall not make any disclosure of any Confidential Information to any potential sources of equity financing without the Company’s prior written consent. The Receiving Party shall be responsible for any breach of the terms of this Agreement by the Receiving Party or by any of its Representatives.
(b) The Receiving Party agrees that, for a period of eighteen months from the date of this Agreement, the Receiving Party shall not (and shall cause its affiliates, subject to Section 22 hereof, not to), directly or indirectly, (i) use the Confidential Information to divert or attempt to divert any business or customer of the Company or (ii) employ or solicit, or initiate contact for employment with, any (A) director, officer or other senior or key employee of the Company or (B) any other employee of the Company whom the Receiving Party meets during its evaluation of the possible Transaction or about whom the Receiving Party receives Confidential Information; provided, however, a general advertisement or other recruiting efforts not specifically targeting any such employees of the Company shall not be considered a solicitation or unauthorized hiring.
(c) If the Receiving Party discovers any unauthorized disclosure or use of any Confidential Information by it or its Representatives, the Receiving Party hereby covenants to promptly notify the Company in writing of any such unauthorized disclosure or use.
4. Non-Disclosure of Existence of Negotiations. Without the prior written consent of the Company or except as may be required by applicable law or regulation, the Receiving Party and its Representatives shall not disclose to any person that any discussions or negotiations are taking place between the parties concerning a possible Transaction, including the content, timing and status of such discussions or negotiations (the “Discussion Information”).
5. No Representations by the Company. The Company will have the exclusive authority to decide what Confidential Information (if any) is to be made available to the Receiving Party and its Representatives. Neither the Company nor any of its directors, officers, employees, agents, consultants, advisors, attorneys, accountants and affiliates (collectively, the “Company Representatives”) will be under any obligation to make any particular Confidential Information available to the Receiving Party or any of the Receiving Party’s Representatives or to supplement or update any Confidential Information previously furnished. Neither the Company nor any of the Company Representatives has made or is making any representation or warranty, express or implied, as to the accuracy or completeness of any Confidential Information, and neither the Company nor any of the Company Representatives will have any liability to the Receiving Party or to any of the Receiving Party’s Representatives relating to or resulting from the use of any Confidential Information or any inaccuracies or errors therein or omissions therefrom. Only those representations and warranties (if any) that are included in any final definitive written agreement that provides for the consummation of a negotiated transaction between the Receiving Party and the Company and is validly executed on behalf of the Receiving Party and the Company will have legal effect.
6. Standstill Agreement. In consideration of the Confidential Information being furnished to the Receiving Party pursuant to this Agreement, the Receiving Party agrees that, for a period of one year from the date of this Agreement (or, such shorter period agreed to by the Company with a third party who is provided access to the Confidential Information for the purpose of evaluating a possible Transaction, the “Standstill Period”), unless expressly requested by the Company or its Board of Directors (or any committee thereof) in writing, the Receiving Party shall not (and shall cause its affiliates not to and shall cause its and their respective Representatives acting at its and their respective behalf not to): (a) in any manner acting alone or in concert with others, acquire, agree to acquire or make any proposal to acquire, directly or indirectly, by means of purchase, merger, business combination or in any other manner, beneficial ownership of any securities of the Company, direct or indirect rights to acquire any securities of the Company (including any derivative securities with economic equivalents of ownership of any of such securities), any right to vote or to direct the voting of any securities of the Company or any assets of the Company, (b) make, or in any way participate in, directly or indirectly, any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote, or seek to advise or influence any person with respect to the voting of, any voting securities of the Company, (c) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) with respect to any voting securities of the Company, other than any group comprised solely of the Receiving Party and its affiliates, (d) otherwise act, alone or in concert with others, to seek to control, advise, change or influence the management, board of directors, governing instruments, policies or affairs of the Company, (e) make any public disclosure, or take any action that could require the Company to make any public disclosure, with respect to any of the matters set forth in this Agreement, other than the required amendment to the Receiving Party’s Schedule 13D filing as a result of the execution and delivery of this Agreement, (f) disclose any intention, plan or arrangement inconsistent with the foregoing or (g) have any discussions or enter into any arrangements (whether written or oral) with, or advise, assist or encourage any other persons in connection with any of the foregoing. The Receiving Party also agrees during such period not to request the Company or any of the Company Representatives, directly or indirectly, to amend or waive any provision of this Section 6 (including this sentence). Notwithstanding any provision in this Agreement to the contrary, (i) the Standstill Period shall terminate immediately if, after the date of this Agreement, (A) the Company enters into a definitive agreement with a third party to effectuate a sale of 50% or more of the consolidated assets of the Company or 50% or more of the Company’s outstanding equity securities, (B) the Company publicly announces the conclusion of its previously announced strategic review process without a definitive agreement to sell the Company, (C) the Company makes an assignment for the benefit of creditors or commences any proceeding under any bankruptcy reorganization, insolvency, dissolution or liquidation law of any jurisdiction or (D) any bankruptcy petition is filed or any such proceeding is commenced against the Company and either (1) the Company indicates its approval thereof, consent thereto or acquiescence therein, or (2) such petition application or proceeding is not dismissed within 30 days and (ii) the Standstill Period solely with respect to clause (b) of this Section 6 shall terminate ten days prior to the expiration of the applicable time period for stockholders to nominate directors for election at the Company’s 2012 annual stockholders meeting to be scheduled in accordance with Section 8 hereof (and, for the avoidance of doubt, the restrictions in clauses (c), (d), (e), (f) and (g) of this Section 6 shall not apply to the activities that were previously expressly prohibited by clause (b) of this Section 6 in the event the restrictions in clause (b) are terminated pursuant to this clause (ii)).
7. Return of Confidential Information. Promptly upon the written request of the Company, the Receiving Party will return all copies of the Confidential Information to the Company, and all notes, studies, reports, memoranda and other documents or materials prepared by the Receiving Party or its Representatives that contain or reflect any Confidential Information shall be destroyed. Notwithstanding the return to the Company or destruction of Confidential Information pursuant to this Section 7, the Receiving Party and its Representatives will continue to be bound by their confidentiality obligations and other obligations under this Agreement for the term hereof. Notwithstanding the foregoing, (a) the Receiving Party’s legal department and/or outside counsel may keep one copy of the Confidential Information (in electronic or paper form) and, with respect to the Receiving Party’s Representatives who are accounting firms, such firms may keep one copy of the Confidential Information, in each case, if required to comply with applicable law or regulation and (b) the Receiving Party and its Representatives may retain Confidential Information to the extent it is “backed-up” on its or their (as the case may be) electronic information management and communications systems or servers, is not available to an end user and cannot be expunged without considerable effort; provided, that any such information so retained pursuant to clauses (a) and (b) of this Section 7 shall be held in compliance with the terms of this Agreement for a period of eighteen months from the date hereof.
8. 2012 Annual Stockholders Meeting. The Company agrees (a) that the meeting date for its 2012 annual stockholders meeting (with respect to the Company’s fiscal year ended January 28, 2012) will be held no earlier than thirty-one days after the first anniversary of the Company’s 2011 annual stockholders meeting (with respect to the Company’s fiscal year ended January 29, 2011) and (b) to provide the Receiving Party a copy of the press release announcing the date of its 2012 annual meeting on the date such press release is publicly issued.
9. Subpoena or Court Order. In the event that the Receiving Party or anyone to whom it discloses the Confidential Information receives a request to disclose all or any part of the Confidential Information or Discussion Information under the terms of a subpoena or other order issued by a court of competent jurisdiction or by another governmental agency, the Receiving Party shall if permitted pursuant to applicable law (a) promptly notify the Company of the existence, terms and circumstances surrounding such a request, (b) consult with the Company on the advisability of taking steps to resist or narrow such request, (c) if disclosure of such Confidential Information or Discussion Information is required, furnish only such portion of the Confidential Information or Discussion Information as the Receiving Party is advised by its legal counsel is legally required to be disclosed and (d) if requested by the Company, cooperate with the Company in its efforts to obtain a protective order or other relief to prevent the disclosure of the Confidential Information or Discussion Information or other reliable assurance that confidential treatment will be accorded to such portion of the Confidential Information or Discussion Information, as applicable, that is required to be disclosed.
10. Definitive Agreement. Unless and until a definitive written agreement between the Receiving Party and the Company with respect to a Transaction has been executed and delivered, neither the Receiving Party nor the Company will be under
any legal obligation of any kind whatsoever with respect to such a Transaction by virtue of this or any other written or oral expression by either of them or their Representatives except, in the case of this Agreement, for the matters specifically agreed to herein.
11. Remedies. Each of the parties hereto acknowledges that in the event of any breach of the terms of this Agreement, the other party could not be made whole by monetary damages only. Accordingly, each of the parties hereto, in addition to any other remedy to which it may be entitled in law or in equity, shall be entitled to an injunction (which shall include a temporary restraining order) to prevent breaches of the terms of this Agreement.
12. Communications. Without the Company’s prior written consent, which may be withheld by the Company in its sole discretion, the Receiving Party shall not (and shall cause its Representatives not to) initiate, other than through the Company’s financial and legal advisors or such other persons, as designated by the Company in writing, any (a) communication concerning the Confidential Information, (b) requests for meetings with management of the Company in connection with the possible Transaction or other transaction between the parties or (c) communication relating to the business of the Company or the possible Transaction, in each case, with any officer, director or employee of the Company.
13. Securities Laws. The Receiving Party acknowledges that it is aware and that the Receiving Party and its Representatives have been advised that the United States securities laws prohibit any person having non-public material information about a company from purchasing or selling securities of that company or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities.
14. Entire Agreement; Amendments. This Agreement represents the entire understanding and agreement of the parties hereto with respect to the matters contained herein, and may be amended, modified or waived only by a separate writing executed by the Receiving Party and the Company expressly so amending, modifying or waiving this Agreement. This Agreement shall inure to the benefit of and be binding upon the parties and their respective successors and assigns.
15. No Waiver. No failure or delay by either party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder.
16. Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of New York, without regard to the laws of conflict of laws. Each of the parties hereto: (a) irrevocably and unconditionally consents and submits to the jurisdiction of the state and federal courts located in the State of New York for purposes of any action, suit or proceeding arising out of or relating to this Agreement; (b) agrees that service of any process, summons, notice or document by U.S. registered mail to the address set forth at the end of this Agreement shall be effective service of process for any action, suit or proceeding brought against such party; (c) irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of or relating to this Agreement in any state or federal court located in the State of New York; and (d) irrevocably and unconditionally waives the right to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any action, suit or proceeding arising out of or relating to this Agreement that is brought in any state or federal court located in the State of New York has been brought in an inconvenient forum.
17. Expenses. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines that a party has breached this Agreement, then such party shall be liable and pay to the non-breaching party the legal fees and expenses such non-breaching party has incurred in connection with such litigation, including any appeal therefrom.
18. Captions. The Captions contained in this Agreement are for convenience only and shall not affect the construction or interpretation of any provisions of this Agreement.
19. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same Agreement.
20. Severability. In the event any term of this Agreement is found by any court to be void or otherwise unenforceable, the remainder of this Agreement shall remain valid and enforceable as though such term were absent upon the date of its execution.
21. Notices. All notices and other communications required or permitted hereunder will be in writing and will be deemed to have been duly given when delivered in person or when dispatched by email or electronic facsimile transfer (with such facsimile confirmed in writing by mail simultaneously dispatched) to the Company at the address specified below:
The Talbots, Inc.
Attention: Chief Operating Officer
One Talbots Drive
Hingham, MA 02043
Telephone: 781-741-7600
Facsimile: 781-741-4927
with copies to:
The Talbots, Inc.
Attention: General Counsel
211 South Ridge St.
Rye Brook, NY 10573
Telephone: 914-934-8877
Facsimile: 914-934-9136
and
Dewey & LeBoeuf LLP
Attention: Morton A. Pierce, Esq.
Chang-Do Gong, Esq.
1301 Avenue of the Americas
New York, NY 10019
Telephone: 212-259-8000
Facsimile: 212-259-6333
22. Non-Private Equity Affiliates. Notwithstanding anything to the contrary provided elsewhere herein, none of the provisions of this Agreement shall in any way limit the ordinary course business services and activities of the Receiving Party and its affiliates; provided, that (a) such services and activities are distinct from the private equity business and (b) the Confidential Information is not made available to Representatives of the Receiving Party and its affiliates who are not involved in the private equity business or who are engaged in investments that are not private equity investments and such ordinary course business services and activities are otherwise conducted without any reference to, or use of, the Confidential Information. The Receiving Party further represents to the Company that the Receiving Party has implemented appropriate internal restrictions on the sharing of confidential information (including, without limitation, the implementation of ethical walls around certain affiliates, to comply with federal securities laws of the United States).
23. Termination. Except as otherwise specified herein, the obligations of the parties set forth in this Agreement shall terminate and be of no further force and effect eighteen months from the date hereof.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, THIS AGREEMENT is executed and delivered effective as of the date first written above.
THE TALBOTS, INC.
By /s/ Richard T. O’Connell, Jr.
Name: Richard T. O’Connell, Jr.
Title: Executive Vice President
SYCAMORE PARTNERS MANAGEMENT, L.L.C.
By /s/ Stefan Kaluzny
Name: /s/ Stefan Kaluzny
Title: Managing Director
| Entailment |
538_nda-7 | 538_nda-7_0 | Q: Receiving Party may share some Confidential Information with some third-parties (including consultants, agents and professional advisors).
Text: STRICTLY CONFIDENTIAL
January 27, 2012
Sycamore Partners Management, L.L.C.
9 West 57 Street, 31 Floorthst
New York, New York 10019
Attention: Stefan Kaluzny
Managing Director
Dear Mr. Kaluzny:
CONFIDENTIALITY AGREEMENT
This Confidentiality Agreement (this “Agreement”) is dated as of January 27, 2012 by and between Sycamore Partners Management, L.L.C., a Delaware limited liability company (the “Receiving Party”) and The Talbots, Inc., a Delaware corporation (together with its subsidiaries, the “Company”).
1. Confidential Information; Representatives. (a) The Receiving Party is considering a possible business combination transaction (whether negotiated directly with the Company’s Board of Directors or otherwise) with respect to the Company (the “Transaction”), and, in order to assist the Receiving Party in evaluating the possible Transaction, the Company is prepared to make available to the Receiving Party certain information concerning the business, operations, strategy and prospects of the Company (all such information, the “Confidential Information”). As a condition to the Confidential Information being furnished to the Receiving Party and the directors, officers, principals, partners, members, employees, agents, consultants, related investment funds, advisors, attorneys, accountants, affiliates, potential sources of capital and financing, and financial advisors (collectively, “Representatives”) of the Receiving Party, the Receiving Party agrees to treat the Confidential Information strictly in accordance with the provisions of this Agreement and to otherwise comply, and to cause its Representatives to comply, with all obligations hereinafter set forth.
(b) The term “Confidential Information” shall include, without limitation, any and all information concerning the Company and its business, operations, strategic initiatives, financing, employees, strategies or prospects that is furnished to the Receiving Party or its Representatives by or on behalf of the Company, whether furnished before or after the date of this Agreement, including, without limitation, any written or oral analyses, business or strategic plans, compilations, studies, data, reports, interpretations, projections, forecasts, records, notes, copies, excerpts, memoranda, documents or other materials (in whatever form maintained or conveyed, whether documentary, computerized, verbal form or otherwise), that contain or otherwise reflect Confidential Information concerning the Company or its business, operations, strategic
initiatives, financing, employees, strategies or prospects prepared by or on behalf of the Receiving Party, any of the Receiving Party’s Representatives, the Company or any Company Representatives (as defined below) or that otherwise reflect any conversations with Company Representatives involving or relating to the Confidential Information.
2. Excluded Information. The Confidential Information shall not include information that the Receiving Party can demonstrate (a) is or becomes available to the public other than as a result of acts by the Receiving Party or its Representatives in breach of the terms of this Agreement, (b) was in the Receiving Party’s possession prior to disclosure by the Company, provided that such information, to the Receiving Party’s knowledge, was not subject to another confidentiality agreement with the Company or another party, (c) has been independently developed by the Receiving Party without reference to, or the use of, any Confidential Information or (d) is disclosed to the Receiving Party by a third party, to the Receiving Party’s knowledge, not bound by any duty or obligation of confidentiality on a non-confidential basis.
3. Limitations on Use and Disclosure of Confidential Information. (a) The Receiving Party shall, and shall cause its Representatives to, use the Confidential Information solely for the purpose of evaluating a possible Transaction. The Receiving Party shall, and shall cause its Representatives to, keep the Confidential Information in confidence and shall not disclose any of the Confidential Information in any manner whatsoever; provided, however, that (i) the Receiving Party may make disclosure of information contained in the Confidential Information if required by applicable law, regulation or legal or regulatory process; provided, that the Receiving Party shall have first complied with the terms of Section 9 hereof, (ii) the Receiving Party may make disclosure of information contained in the Confidential Information to the extent that the Company gives its prior written consent, and (iii) any information contained in the Confidential Information may be disclosed to the Receiving Party’s Representatives who reasonably require access to such information for the purpose of evaluating a possible Transaction and who agree to keep such information in confidence to the same extent as described herein; provided, further, that the Receiving Party shall not make any disclosure of any Confidential Information to any potential sources of equity financing without the Company’s prior written consent. The Receiving Party shall be responsible for any breach of the terms of this Agreement by the Receiving Party or by any of its Representatives.
(b) The Receiving Party agrees that, for a period of eighteen months from the date of this Agreement, the Receiving Party shall not (and shall cause its affiliates, subject to Section 22 hereof, not to), directly or indirectly, (i) use the Confidential Information to divert or attempt to divert any business or customer of the Company or (ii) employ or solicit, or initiate contact for employment with, any (A) director, officer or other senior or key employee of the Company or (B) any other employee of the Company whom the Receiving Party meets during its evaluation of the possible Transaction or about whom the Receiving Party receives Confidential Information; provided, however, a general advertisement or other recruiting efforts not specifically targeting any such employees of the Company shall not be considered a solicitation or unauthorized hiring.
(c) If the Receiving Party discovers any unauthorized disclosure or use of any Confidential Information by it or its Representatives, the Receiving Party hereby covenants to promptly notify the Company in writing of any such unauthorized disclosure or use.
4. Non-Disclosure of Existence of Negotiations. Without the prior written consent of the Company or except as may be required by applicable law or regulation, the Receiving Party and its Representatives shall not disclose to any person that any discussions or negotiations are taking place between the parties concerning a possible Transaction, including the content, timing and status of such discussions or negotiations (the “Discussion Information”).
5. No Representations by the Company. The Company will have the exclusive authority to decide what Confidential Information (if any) is to be made available to the Receiving Party and its Representatives. Neither the Company nor any of its directors, officers, employees, agents, consultants, advisors, attorneys, accountants and affiliates (collectively, the “Company Representatives”) will be under any obligation to make any particular Confidential Information available to the Receiving Party or any of the Receiving Party’s Representatives or to supplement or update any Confidential Information previously furnished. Neither the Company nor any of the Company Representatives has made or is making any representation or warranty, express or implied, as to the accuracy or completeness of any Confidential Information, and neither the Company nor any of the Company Representatives will have any liability to the Receiving Party or to any of the Receiving Party’s Representatives relating to or resulting from the use of any Confidential Information or any inaccuracies or errors therein or omissions therefrom. Only those representations and warranties (if any) that are included in any final definitive written agreement that provides for the consummation of a negotiated transaction between the Receiving Party and the Company and is validly executed on behalf of the Receiving Party and the Company will have legal effect.
6. Standstill Agreement. In consideration of the Confidential Information being furnished to the Receiving Party pursuant to this Agreement, the Receiving Party agrees that, for a period of one year from the date of this Agreement (or, such shorter period agreed to by the Company with a third party who is provided access to the Confidential Information for the purpose of evaluating a possible Transaction, the “Standstill Period”), unless expressly requested by the Company or its Board of Directors (or any committee thereof) in writing, the Receiving Party shall not (and shall cause its affiliates not to and shall cause its and their respective Representatives acting at its and their respective behalf not to): (a) in any manner acting alone or in concert with others, acquire, agree to acquire or make any proposal to acquire, directly or indirectly, by means of purchase, merger, business combination or in any other manner, beneficial ownership of any securities of the Company, direct or indirect rights to acquire any securities of the Company (including any derivative securities with economic equivalents of ownership of any of such securities), any right to vote or to direct the voting of any securities of the Company or any assets of the Company, (b) make, or in any way participate in, directly or indirectly, any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote, or seek to advise or influence any person with respect to the voting of, any voting securities of the Company, (c) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) with respect to any voting securities of the Company, other than any group comprised solely of the Receiving Party and its affiliates, (d) otherwise act, alone or in concert with others, to seek to control, advise, change or influence the management, board of directors, governing instruments, policies or affairs of the Company, (e) make any public disclosure, or take any action that could require the Company to make any public disclosure, with respect to any of the matters set forth in this Agreement, other than the required amendment to the Receiving Party’s Schedule 13D filing as a result of the execution and delivery of this Agreement, (f) disclose any intention, plan or arrangement inconsistent with the foregoing or (g) have any discussions or enter into any arrangements (whether written or oral) with, or advise, assist or encourage any other persons in connection with any of the foregoing. The Receiving Party also agrees during such period not to request the Company or any of the Company Representatives, directly or indirectly, to amend or waive any provision of this Section 6 (including this sentence). Notwithstanding any provision in this Agreement to the contrary, (i) the Standstill Period shall terminate immediately if, after the date of this Agreement, (A) the Company enters into a definitive agreement with a third party to effectuate a sale of 50% or more of the consolidated assets of the Company or 50% or more of the Company’s outstanding equity securities, (B) the Company publicly announces the conclusion of its previously announced strategic review process without a definitive agreement to sell the Company, (C) the Company makes an assignment for the benefit of creditors or commences any proceeding under any bankruptcy reorganization, insolvency, dissolution or liquidation law of any jurisdiction or (D) any bankruptcy petition is filed or any such proceeding is commenced against the Company and either (1) the Company indicates its approval thereof, consent thereto or acquiescence therein, or (2) such petition application or proceeding is not dismissed within 30 days and (ii) the Standstill Period solely with respect to clause (b) of this Section 6 shall terminate ten days prior to the expiration of the applicable time period for stockholders to nominate directors for election at the Company’s 2012 annual stockholders meeting to be scheduled in accordance with Section 8 hereof (and, for the avoidance of doubt, the restrictions in clauses (c), (d), (e), (f) and (g) of this Section 6 shall not apply to the activities that were previously expressly prohibited by clause (b) of this Section 6 in the event the restrictions in clause (b) are terminated pursuant to this clause (ii)).
7. Return of Confidential Information. Promptly upon the written request of the Company, the Receiving Party will return all copies of the Confidential Information to the Company, and all notes, studies, reports, memoranda and other documents or materials prepared by the Receiving Party or its Representatives that contain or reflect any Confidential Information shall be destroyed. Notwithstanding the return to the Company or destruction of Confidential Information pursuant to this Section 7, the Receiving Party and its Representatives will continue to be bound by their confidentiality obligations and other obligations under this Agreement for the term hereof. Notwithstanding the foregoing, (a) the Receiving Party’s legal department and/or outside counsel may keep one copy of the Confidential Information (in electronic or paper form) and, with respect to the Receiving Party’s Representatives who are accounting firms, such firms may keep one copy of the Confidential Information, in each case, if required to comply with applicable law or regulation and (b) the Receiving Party and its Representatives may retain Confidential Information to the extent it is “backed-up” on its or their (as the case may be) electronic information management and communications systems or servers, is not available to an end user and cannot be expunged without considerable effort; provided, that any such information so retained pursuant to clauses (a) and (b) of this Section 7 shall be held in compliance with the terms of this Agreement for a period of eighteen months from the date hereof.
8. 2012 Annual Stockholders Meeting. The Company agrees (a) that the meeting date for its 2012 annual stockholders meeting (with respect to the Company’s fiscal year ended January 28, 2012) will be held no earlier than thirty-one days after the first anniversary of the Company’s 2011 annual stockholders meeting (with respect to the Company’s fiscal year ended January 29, 2011) and (b) to provide the Receiving Party a copy of the press release announcing the date of its 2012 annual meeting on the date such press release is publicly issued.
9. Subpoena or Court Order. In the event that the Receiving Party or anyone to whom it discloses the Confidential Information receives a request to disclose all or any part of the Confidential Information or Discussion Information under the terms of a subpoena or other order issued by a court of competent jurisdiction or by another governmental agency, the Receiving Party shall if permitted pursuant to applicable law (a) promptly notify the Company of the existence, terms and circumstances surrounding such a request, (b) consult with the Company on the advisability of taking steps to resist or narrow such request, (c) if disclosure of such Confidential Information or Discussion Information is required, furnish only such portion of the Confidential Information or Discussion Information as the Receiving Party is advised by its legal counsel is legally required to be disclosed and (d) if requested by the Company, cooperate with the Company in its efforts to obtain a protective order or other relief to prevent the disclosure of the Confidential Information or Discussion Information or other reliable assurance that confidential treatment will be accorded to such portion of the Confidential Information or Discussion Information, as applicable, that is required to be disclosed.
10. Definitive Agreement. Unless and until a definitive written agreement between the Receiving Party and the Company with respect to a Transaction has been executed and delivered, neither the Receiving Party nor the Company will be under
any legal obligation of any kind whatsoever with respect to such a Transaction by virtue of this or any other written or oral expression by either of them or their Representatives except, in the case of this Agreement, for the matters specifically agreed to herein.
11. Remedies. Each of the parties hereto acknowledges that in the event of any breach of the terms of this Agreement, the other party could not be made whole by monetary damages only. Accordingly, each of the parties hereto, in addition to any other remedy to which it may be entitled in law or in equity, shall be entitled to an injunction (which shall include a temporary restraining order) to prevent breaches of the terms of this Agreement.
12. Communications. Without the Company’s prior written consent, which may be withheld by the Company in its sole discretion, the Receiving Party shall not (and shall cause its Representatives not to) initiate, other than through the Company’s financial and legal advisors or such other persons, as designated by the Company in writing, any (a) communication concerning the Confidential Information, (b) requests for meetings with management of the Company in connection with the possible Transaction or other transaction between the parties or (c) communication relating to the business of the Company or the possible Transaction, in each case, with any officer, director or employee of the Company.
13. Securities Laws. The Receiving Party acknowledges that it is aware and that the Receiving Party and its Representatives have been advised that the United States securities laws prohibit any person having non-public material information about a company from purchasing or selling securities of that company or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities.
14. Entire Agreement; Amendments. This Agreement represents the entire understanding and agreement of the parties hereto with respect to the matters contained herein, and may be amended, modified or waived only by a separate writing executed by the Receiving Party and the Company expressly so amending, modifying or waiving this Agreement. This Agreement shall inure to the benefit of and be binding upon the parties and their respective successors and assigns.
15. No Waiver. No failure or delay by either party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder.
16. Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of New York, without regard to the laws of conflict of laws. Each of the parties hereto: (a) irrevocably and unconditionally consents and submits to the jurisdiction of the state and federal courts located in the State of New York for purposes of any action, suit or proceeding arising out of or relating to this Agreement; (b) agrees that service of any process, summons, notice or document by U.S. registered mail to the address set forth at the end of this Agreement shall be effective service of process for any action, suit or proceeding brought against such party; (c) irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of or relating to this Agreement in any state or federal court located in the State of New York; and (d) irrevocably and unconditionally waives the right to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any action, suit or proceeding arising out of or relating to this Agreement that is brought in any state or federal court located in the State of New York has been brought in an inconvenient forum.
17. Expenses. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines that a party has breached this Agreement, then such party shall be liable and pay to the non-breaching party the legal fees and expenses such non-breaching party has incurred in connection with such litigation, including any appeal therefrom.
18. Captions. The Captions contained in this Agreement are for convenience only and shall not affect the construction or interpretation of any provisions of this Agreement.
19. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same Agreement.
20. Severability. In the event any term of this Agreement is found by any court to be void or otherwise unenforceable, the remainder of this Agreement shall remain valid and enforceable as though such term were absent upon the date of its execution.
21. Notices. All notices and other communications required or permitted hereunder will be in writing and will be deemed to have been duly given when delivered in person or when dispatched by email or electronic facsimile transfer (with such facsimile confirmed in writing by mail simultaneously dispatched) to the Company at the address specified below:
The Talbots, Inc.
Attention: Chief Operating Officer
One Talbots Drive
Hingham, MA 02043
Telephone: 781-741-7600
Facsimile: 781-741-4927
with copies to:
The Talbots, Inc.
Attention: General Counsel
211 South Ridge St.
Rye Brook, NY 10573
Telephone: 914-934-8877
Facsimile: 914-934-9136
and
Dewey & LeBoeuf LLP
Attention: Morton A. Pierce, Esq.
Chang-Do Gong, Esq.
1301 Avenue of the Americas
New York, NY 10019
Telephone: 212-259-8000
Facsimile: 212-259-6333
22. Non-Private Equity Affiliates. Notwithstanding anything to the contrary provided elsewhere herein, none of the provisions of this Agreement shall in any way limit the ordinary course business services and activities of the Receiving Party and its affiliates; provided, that (a) such services and activities are distinct from the private equity business and (b) the Confidential Information is not made available to Representatives of the Receiving Party and its affiliates who are not involved in the private equity business or who are engaged in investments that are not private equity investments and such ordinary course business services and activities are otherwise conducted without any reference to, or use of, the Confidential Information. The Receiving Party further represents to the Company that the Receiving Party has implemented appropriate internal restrictions on the sharing of confidential information (including, without limitation, the implementation of ethical walls around certain affiliates, to comply with federal securities laws of the United States).
23. Termination. Except as otherwise specified herein, the obligations of the parties set forth in this Agreement shall terminate and be of no further force and effect eighteen months from the date hereof.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, THIS AGREEMENT is executed and delivered effective as of the date first written above.
THE TALBOTS, INC.
By /s/ Richard T. O’Connell, Jr.
Name: Richard T. O’Connell, Jr.
Title: Executive Vice President
SYCAMORE PARTNERS MANAGEMENT, L.L.C.
By /s/ Stefan Kaluzny
Name: /s/ Stefan Kaluzny
Title: Managing Director
| Entailment |
538_nda-17 | 538_nda-17_0 | Q: Receiving Party may create a copy of some Confidential Information in some circumstances.
Text: STRICTLY CONFIDENTIAL
January 27, 2012
Sycamore Partners Management, L.L.C.
9 West 57 Street, 31 Floorthst
New York, New York 10019
Attention: Stefan Kaluzny
Managing Director
Dear Mr. Kaluzny:
CONFIDENTIALITY AGREEMENT
This Confidentiality Agreement (this “Agreement”) is dated as of January 27, 2012 by and between Sycamore Partners Management, L.L.C., a Delaware limited liability company (the “Receiving Party”) and The Talbots, Inc., a Delaware corporation (together with its subsidiaries, the “Company”).
1. Confidential Information; Representatives. (a) The Receiving Party is considering a possible business combination transaction (whether negotiated directly with the Company’s Board of Directors or otherwise) with respect to the Company (the “Transaction”), and, in order to assist the Receiving Party in evaluating the possible Transaction, the Company is prepared to make available to the Receiving Party certain information concerning the business, operations, strategy and prospects of the Company (all such information, the “Confidential Information”). As a condition to the Confidential Information being furnished to the Receiving Party and the directors, officers, principals, partners, members, employees, agents, consultants, related investment funds, advisors, attorneys, accountants, affiliates, potential sources of capital and financing, and financial advisors (collectively, “Representatives”) of the Receiving Party, the Receiving Party agrees to treat the Confidential Information strictly in accordance with the provisions of this Agreement and to otherwise comply, and to cause its Representatives to comply, with all obligations hereinafter set forth.
(b) The term “Confidential Information” shall include, without limitation, any and all information concerning the Company and its business, operations, strategic initiatives, financing, employees, strategies or prospects that is furnished to the Receiving Party or its Representatives by or on behalf of the Company, whether furnished before or after the date of this Agreement, including, without limitation, any written or oral analyses, business or strategic plans, compilations, studies, data, reports, interpretations, projections, forecasts, records, notes, copies, excerpts, memoranda, documents or other materials (in whatever form maintained or conveyed, whether documentary, computerized, verbal form or otherwise), that contain or otherwise reflect Confidential Information concerning the Company or its business, operations, strategic
initiatives, financing, employees, strategies or prospects prepared by or on behalf of the Receiving Party, any of the Receiving Party’s Representatives, the Company or any Company Representatives (as defined below) or that otherwise reflect any conversations with Company Representatives involving or relating to the Confidential Information.
2. Excluded Information. The Confidential Information shall not include information that the Receiving Party can demonstrate (a) is or becomes available to the public other than as a result of acts by the Receiving Party or its Representatives in breach of the terms of this Agreement, (b) was in the Receiving Party’s possession prior to disclosure by the Company, provided that such information, to the Receiving Party’s knowledge, was not subject to another confidentiality agreement with the Company or another party, (c) has been independently developed by the Receiving Party without reference to, or the use of, any Confidential Information or (d) is disclosed to the Receiving Party by a third party, to the Receiving Party’s knowledge, not bound by any duty or obligation of confidentiality on a non-confidential basis.
3. Limitations on Use and Disclosure of Confidential Information. (a) The Receiving Party shall, and shall cause its Representatives to, use the Confidential Information solely for the purpose of evaluating a possible Transaction. The Receiving Party shall, and shall cause its Representatives to, keep the Confidential Information in confidence and shall not disclose any of the Confidential Information in any manner whatsoever; provided, however, that (i) the Receiving Party may make disclosure of information contained in the Confidential Information if required by applicable law, regulation or legal or regulatory process; provided, that the Receiving Party shall have first complied with the terms of Section 9 hereof, (ii) the Receiving Party may make disclosure of information contained in the Confidential Information to the extent that the Company gives its prior written consent, and (iii) any information contained in the Confidential Information may be disclosed to the Receiving Party’s Representatives who reasonably require access to such information for the purpose of evaluating a possible Transaction and who agree to keep such information in confidence to the same extent as described herein; provided, further, that the Receiving Party shall not make any disclosure of any Confidential Information to any potential sources of equity financing without the Company’s prior written consent. The Receiving Party shall be responsible for any breach of the terms of this Agreement by the Receiving Party or by any of its Representatives.
(b) The Receiving Party agrees that, for a period of eighteen months from the date of this Agreement, the Receiving Party shall not (and shall cause its affiliates, subject to Section 22 hereof, not to), directly or indirectly, (i) use the Confidential Information to divert or attempt to divert any business or customer of the Company or (ii) employ or solicit, or initiate contact for employment with, any (A) director, officer or other senior or key employee of the Company or (B) any other employee of the Company whom the Receiving Party meets during its evaluation of the possible Transaction or about whom the Receiving Party receives Confidential Information; provided, however, a general advertisement or other recruiting efforts not specifically targeting any such employees of the Company shall not be considered a solicitation or unauthorized hiring.
(c) If the Receiving Party discovers any unauthorized disclosure or use of any Confidential Information by it or its Representatives, the Receiving Party hereby covenants to promptly notify the Company in writing of any such unauthorized disclosure or use.
4. Non-Disclosure of Existence of Negotiations. Without the prior written consent of the Company or except as may be required by applicable law or regulation, the Receiving Party and its Representatives shall not disclose to any person that any discussions or negotiations are taking place between the parties concerning a possible Transaction, including the content, timing and status of such discussions or negotiations (the “Discussion Information”).
5. No Representations by the Company. The Company will have the exclusive authority to decide what Confidential Information (if any) is to be made available to the Receiving Party and its Representatives. Neither the Company nor any of its directors, officers, employees, agents, consultants, advisors, attorneys, accountants and affiliates (collectively, the “Company Representatives”) will be under any obligation to make any particular Confidential Information available to the Receiving Party or any of the Receiving Party’s Representatives or to supplement or update any Confidential Information previously furnished. Neither the Company nor any of the Company Representatives has made or is making any representation or warranty, express or implied, as to the accuracy or completeness of any Confidential Information, and neither the Company nor any of the Company Representatives will have any liability to the Receiving Party or to any of the Receiving Party’s Representatives relating to or resulting from the use of any Confidential Information or any inaccuracies or errors therein or omissions therefrom. Only those representations and warranties (if any) that are included in any final definitive written agreement that provides for the consummation of a negotiated transaction between the Receiving Party and the Company and is validly executed on behalf of the Receiving Party and the Company will have legal effect.
6. Standstill Agreement. In consideration of the Confidential Information being furnished to the Receiving Party pursuant to this Agreement, the Receiving Party agrees that, for a period of one year from the date of this Agreement (or, such shorter period agreed to by the Company with a third party who is provided access to the Confidential Information for the purpose of evaluating a possible Transaction, the “Standstill Period”), unless expressly requested by the Company or its Board of Directors (or any committee thereof) in writing, the Receiving Party shall not (and shall cause its affiliates not to and shall cause its and their respective Representatives acting at its and their respective behalf not to): (a) in any manner acting alone or in concert with others, acquire, agree to acquire or make any proposal to acquire, directly or indirectly, by means of purchase, merger, business combination or in any other manner, beneficial ownership of any securities of the Company, direct or indirect rights to acquire any securities of the Company (including any derivative securities with economic equivalents of ownership of any of such securities), any right to vote or to direct the voting of any securities of the Company or any assets of the Company, (b) make, or in any way participate in, directly or indirectly, any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote, or seek to advise or influence any person with respect to the voting of, any voting securities of the Company, (c) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) with respect to any voting securities of the Company, other than any group comprised solely of the Receiving Party and its affiliates, (d) otherwise act, alone or in concert with others, to seek to control, advise, change or influence the management, board of directors, governing instruments, policies or affairs of the Company, (e) make any public disclosure, or take any action that could require the Company to make any public disclosure, with respect to any of the matters set forth in this Agreement, other than the required amendment to the Receiving Party’s Schedule 13D filing as a result of the execution and delivery of this Agreement, (f) disclose any intention, plan or arrangement inconsistent with the foregoing or (g) have any discussions or enter into any arrangements (whether written or oral) with, or advise, assist or encourage any other persons in connection with any of the foregoing. The Receiving Party also agrees during such period not to request the Company or any of the Company Representatives, directly or indirectly, to amend or waive any provision of this Section 6 (including this sentence). Notwithstanding any provision in this Agreement to the contrary, (i) the Standstill Period shall terminate immediately if, after the date of this Agreement, (A) the Company enters into a definitive agreement with a third party to effectuate a sale of 50% or more of the consolidated assets of the Company or 50% or more of the Company’s outstanding equity securities, (B) the Company publicly announces the conclusion of its previously announced strategic review process without a definitive agreement to sell the Company, (C) the Company makes an assignment for the benefit of creditors or commences any proceeding under any bankruptcy reorganization, insolvency, dissolution or liquidation law of any jurisdiction or (D) any bankruptcy petition is filed or any such proceeding is commenced against the Company and either (1) the Company indicates its approval thereof, consent thereto or acquiescence therein, or (2) such petition application or proceeding is not dismissed within 30 days and (ii) the Standstill Period solely with respect to clause (b) of this Section 6 shall terminate ten days prior to the expiration of the applicable time period for stockholders to nominate directors for election at the Company’s 2012 annual stockholders meeting to be scheduled in accordance with Section 8 hereof (and, for the avoidance of doubt, the restrictions in clauses (c), (d), (e), (f) and (g) of this Section 6 shall not apply to the activities that were previously expressly prohibited by clause (b) of this Section 6 in the event the restrictions in clause (b) are terminated pursuant to this clause (ii)).
7. Return of Confidential Information. Promptly upon the written request of the Company, the Receiving Party will return all copies of the Confidential Information to the Company, and all notes, studies, reports, memoranda and other documents or materials prepared by the Receiving Party or its Representatives that contain or reflect any Confidential Information shall be destroyed. Notwithstanding the return to the Company or destruction of Confidential Information pursuant to this Section 7, the Receiving Party and its Representatives will continue to be bound by their confidentiality obligations and other obligations under this Agreement for the term hereof. Notwithstanding the foregoing, (a) the Receiving Party’s legal department and/or outside counsel may keep one copy of the Confidential Information (in electronic or paper form) and, with respect to the Receiving Party’s Representatives who are accounting firms, such firms may keep one copy of the Confidential Information, in each case, if required to comply with applicable law or regulation and (b) the Receiving Party and its Representatives may retain Confidential Information to the extent it is “backed-up” on its or their (as the case may be) electronic information management and communications systems or servers, is not available to an end user and cannot be expunged without considerable effort; provided, that any such information so retained pursuant to clauses (a) and (b) of this Section 7 shall be held in compliance with the terms of this Agreement for a period of eighteen months from the date hereof.
8. 2012 Annual Stockholders Meeting. The Company agrees (a) that the meeting date for its 2012 annual stockholders meeting (with respect to the Company’s fiscal year ended January 28, 2012) will be held no earlier than thirty-one days after the first anniversary of the Company’s 2011 annual stockholders meeting (with respect to the Company’s fiscal year ended January 29, 2011) and (b) to provide the Receiving Party a copy of the press release announcing the date of its 2012 annual meeting on the date such press release is publicly issued.
9. Subpoena or Court Order. In the event that the Receiving Party or anyone to whom it discloses the Confidential Information receives a request to disclose all or any part of the Confidential Information or Discussion Information under the terms of a subpoena or other order issued by a court of competent jurisdiction or by another governmental agency, the Receiving Party shall if permitted pursuant to applicable law (a) promptly notify the Company of the existence, terms and circumstances surrounding such a request, (b) consult with the Company on the advisability of taking steps to resist or narrow such request, (c) if disclosure of such Confidential Information or Discussion Information is required, furnish only such portion of the Confidential Information or Discussion Information as the Receiving Party is advised by its legal counsel is legally required to be disclosed and (d) if requested by the Company, cooperate with the Company in its efforts to obtain a protective order or other relief to prevent the disclosure of the Confidential Information or Discussion Information or other reliable assurance that confidential treatment will be accorded to such portion of the Confidential Information or Discussion Information, as applicable, that is required to be disclosed.
10. Definitive Agreement. Unless and until a definitive written agreement between the Receiving Party and the Company with respect to a Transaction has been executed and delivered, neither the Receiving Party nor the Company will be under
any legal obligation of any kind whatsoever with respect to such a Transaction by virtue of this or any other written or oral expression by either of them or their Representatives except, in the case of this Agreement, for the matters specifically agreed to herein.
11. Remedies. Each of the parties hereto acknowledges that in the event of any breach of the terms of this Agreement, the other party could not be made whole by monetary damages only. Accordingly, each of the parties hereto, in addition to any other remedy to which it may be entitled in law or in equity, shall be entitled to an injunction (which shall include a temporary restraining order) to prevent breaches of the terms of this Agreement.
12. Communications. Without the Company’s prior written consent, which may be withheld by the Company in its sole discretion, the Receiving Party shall not (and shall cause its Representatives not to) initiate, other than through the Company’s financial and legal advisors or such other persons, as designated by the Company in writing, any (a) communication concerning the Confidential Information, (b) requests for meetings with management of the Company in connection with the possible Transaction or other transaction between the parties or (c) communication relating to the business of the Company or the possible Transaction, in each case, with any officer, director or employee of the Company.
13. Securities Laws. The Receiving Party acknowledges that it is aware and that the Receiving Party and its Representatives have been advised that the United States securities laws prohibit any person having non-public material information about a company from purchasing or selling securities of that company or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities.
14. Entire Agreement; Amendments. This Agreement represents the entire understanding and agreement of the parties hereto with respect to the matters contained herein, and may be amended, modified or waived only by a separate writing executed by the Receiving Party and the Company expressly so amending, modifying or waiving this Agreement. This Agreement shall inure to the benefit of and be binding upon the parties and their respective successors and assigns.
15. No Waiver. No failure or delay by either party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder.
16. Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of New York, without regard to the laws of conflict of laws. Each of the parties hereto: (a) irrevocably and unconditionally consents and submits to the jurisdiction of the state and federal courts located in the State of New York for purposes of any action, suit or proceeding arising out of or relating to this Agreement; (b) agrees that service of any process, summons, notice or document by U.S. registered mail to the address set forth at the end of this Agreement shall be effective service of process for any action, suit or proceeding brought against such party; (c) irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of or relating to this Agreement in any state or federal court located in the State of New York; and (d) irrevocably and unconditionally waives the right to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any action, suit or proceeding arising out of or relating to this Agreement that is brought in any state or federal court located in the State of New York has been brought in an inconvenient forum.
17. Expenses. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines that a party has breached this Agreement, then such party shall be liable and pay to the non-breaching party the legal fees and expenses such non-breaching party has incurred in connection with such litigation, including any appeal therefrom.
18. Captions. The Captions contained in this Agreement are for convenience only and shall not affect the construction or interpretation of any provisions of this Agreement.
19. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same Agreement.
20. Severability. In the event any term of this Agreement is found by any court to be void or otherwise unenforceable, the remainder of this Agreement shall remain valid and enforceable as though such term were absent upon the date of its execution.
21. Notices. All notices and other communications required or permitted hereunder will be in writing and will be deemed to have been duly given when delivered in person or when dispatched by email or electronic facsimile transfer (with such facsimile confirmed in writing by mail simultaneously dispatched) to the Company at the address specified below:
The Talbots, Inc.
Attention: Chief Operating Officer
One Talbots Drive
Hingham, MA 02043
Telephone: 781-741-7600
Facsimile: 781-741-4927
with copies to:
The Talbots, Inc.
Attention: General Counsel
211 South Ridge St.
Rye Brook, NY 10573
Telephone: 914-934-8877
Facsimile: 914-934-9136
and
Dewey & LeBoeuf LLP
Attention: Morton A. Pierce, Esq.
Chang-Do Gong, Esq.
1301 Avenue of the Americas
New York, NY 10019
Telephone: 212-259-8000
Facsimile: 212-259-6333
22. Non-Private Equity Affiliates. Notwithstanding anything to the contrary provided elsewhere herein, none of the provisions of this Agreement shall in any way limit the ordinary course business services and activities of the Receiving Party and its affiliates; provided, that (a) such services and activities are distinct from the private equity business and (b) the Confidential Information is not made available to Representatives of the Receiving Party and its affiliates who are not involved in the private equity business or who are engaged in investments that are not private equity investments and such ordinary course business services and activities are otherwise conducted without any reference to, or use of, the Confidential Information. The Receiving Party further represents to the Company that the Receiving Party has implemented appropriate internal restrictions on the sharing of confidential information (including, without limitation, the implementation of ethical walls around certain affiliates, to comply with federal securities laws of the United States).
23. Termination. Except as otherwise specified herein, the obligations of the parties set forth in this Agreement shall terminate and be of no further force and effect eighteen months from the date hereof.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, THIS AGREEMENT is executed and delivered effective as of the date first written above.
THE TALBOTS, INC.
By /s/ Richard T. O’Connell, Jr.
Name: Richard T. O’Connell, Jr.
Title: Executive Vice President
SYCAMORE PARTNERS MANAGEMENT, L.L.C.
By /s/ Stefan Kaluzny
Name: /s/ Stefan Kaluzny
Title: Managing Director
| Not mentioned |
538_nda-8 | 538_nda-8_0 | Q: Receiving Party shall notify Disclosing Party in case Receiving Party is required by law, regulation or judicial process to disclose any Confidential Information.
Text: STRICTLY CONFIDENTIAL
January 27, 2012
Sycamore Partners Management, L.L.C.
9 West 57 Street, 31 Floorthst
New York, New York 10019
Attention: Stefan Kaluzny
Managing Director
Dear Mr. Kaluzny:
CONFIDENTIALITY AGREEMENT
This Confidentiality Agreement (this “Agreement”) is dated as of January 27, 2012 by and between Sycamore Partners Management, L.L.C., a Delaware limited liability company (the “Receiving Party”) and The Talbots, Inc., a Delaware corporation (together with its subsidiaries, the “Company”).
1. Confidential Information; Representatives. (a) The Receiving Party is considering a possible business combination transaction (whether negotiated directly with the Company’s Board of Directors or otherwise) with respect to the Company (the “Transaction”), and, in order to assist the Receiving Party in evaluating the possible Transaction, the Company is prepared to make available to the Receiving Party certain information concerning the business, operations, strategy and prospects of the Company (all such information, the “Confidential Information”). As a condition to the Confidential Information being furnished to the Receiving Party and the directors, officers, principals, partners, members, employees, agents, consultants, related investment funds, advisors, attorneys, accountants, affiliates, potential sources of capital and financing, and financial advisors (collectively, “Representatives”) of the Receiving Party, the Receiving Party agrees to treat the Confidential Information strictly in accordance with the provisions of this Agreement and to otherwise comply, and to cause its Representatives to comply, with all obligations hereinafter set forth.
(b) The term “Confidential Information” shall include, without limitation, any and all information concerning the Company and its business, operations, strategic initiatives, financing, employees, strategies or prospects that is furnished to the Receiving Party or its Representatives by or on behalf of the Company, whether furnished before or after the date of this Agreement, including, without limitation, any written or oral analyses, business or strategic plans, compilations, studies, data, reports, interpretations, projections, forecasts, records, notes, copies, excerpts, memoranda, documents or other materials (in whatever form maintained or conveyed, whether documentary, computerized, verbal form or otherwise), that contain or otherwise reflect Confidential Information concerning the Company or its business, operations, strategic
initiatives, financing, employees, strategies or prospects prepared by or on behalf of the Receiving Party, any of the Receiving Party’s Representatives, the Company or any Company Representatives (as defined below) or that otherwise reflect any conversations with Company Representatives involving or relating to the Confidential Information.
2. Excluded Information. The Confidential Information shall not include information that the Receiving Party can demonstrate (a) is or becomes available to the public other than as a result of acts by the Receiving Party or its Representatives in breach of the terms of this Agreement, (b) was in the Receiving Party’s possession prior to disclosure by the Company, provided that such information, to the Receiving Party’s knowledge, was not subject to another confidentiality agreement with the Company or another party, (c) has been independently developed by the Receiving Party without reference to, or the use of, any Confidential Information or (d) is disclosed to the Receiving Party by a third party, to the Receiving Party’s knowledge, not bound by any duty or obligation of confidentiality on a non-confidential basis.
3. Limitations on Use and Disclosure of Confidential Information. (a) The Receiving Party shall, and shall cause its Representatives to, use the Confidential Information solely for the purpose of evaluating a possible Transaction. The Receiving Party shall, and shall cause its Representatives to, keep the Confidential Information in confidence and shall not disclose any of the Confidential Information in any manner whatsoever; provided, however, that (i) the Receiving Party may make disclosure of information contained in the Confidential Information if required by applicable law, regulation or legal or regulatory process; provided, that the Receiving Party shall have first complied with the terms of Section 9 hereof, (ii) the Receiving Party may make disclosure of information contained in the Confidential Information to the extent that the Company gives its prior written consent, and (iii) any information contained in the Confidential Information may be disclosed to the Receiving Party’s Representatives who reasonably require access to such information for the purpose of evaluating a possible Transaction and who agree to keep such information in confidence to the same extent as described herein; provided, further, that the Receiving Party shall not make any disclosure of any Confidential Information to any potential sources of equity financing without the Company’s prior written consent. The Receiving Party shall be responsible for any breach of the terms of this Agreement by the Receiving Party or by any of its Representatives.
(b) The Receiving Party agrees that, for a period of eighteen months from the date of this Agreement, the Receiving Party shall not (and shall cause its affiliates, subject to Section 22 hereof, not to), directly or indirectly, (i) use the Confidential Information to divert or attempt to divert any business or customer of the Company or (ii) employ or solicit, or initiate contact for employment with, any (A) director, officer or other senior or key employee of the Company or (B) any other employee of the Company whom the Receiving Party meets during its evaluation of the possible Transaction or about whom the Receiving Party receives Confidential Information; provided, however, a general advertisement or other recruiting efforts not specifically targeting any such employees of the Company shall not be considered a solicitation or unauthorized hiring.
(c) If the Receiving Party discovers any unauthorized disclosure or use of any Confidential Information by it or its Representatives, the Receiving Party hereby covenants to promptly notify the Company in writing of any such unauthorized disclosure or use.
4. Non-Disclosure of Existence of Negotiations. Without the prior written consent of the Company or except as may be required by applicable law or regulation, the Receiving Party and its Representatives shall not disclose to any person that any discussions or negotiations are taking place between the parties concerning a possible Transaction, including the content, timing and status of such discussions or negotiations (the “Discussion Information”).
5. No Representations by the Company. The Company will have the exclusive authority to decide what Confidential Information (if any) is to be made available to the Receiving Party and its Representatives. Neither the Company nor any of its directors, officers, employees, agents, consultants, advisors, attorneys, accountants and affiliates (collectively, the “Company Representatives”) will be under any obligation to make any particular Confidential Information available to the Receiving Party or any of the Receiving Party’s Representatives or to supplement or update any Confidential Information previously furnished. Neither the Company nor any of the Company Representatives has made or is making any representation or warranty, express or implied, as to the accuracy or completeness of any Confidential Information, and neither the Company nor any of the Company Representatives will have any liability to the Receiving Party or to any of the Receiving Party’s Representatives relating to or resulting from the use of any Confidential Information or any inaccuracies or errors therein or omissions therefrom. Only those representations and warranties (if any) that are included in any final definitive written agreement that provides for the consummation of a negotiated transaction between the Receiving Party and the Company and is validly executed on behalf of the Receiving Party and the Company will have legal effect.
6. Standstill Agreement. In consideration of the Confidential Information being furnished to the Receiving Party pursuant to this Agreement, the Receiving Party agrees that, for a period of one year from the date of this Agreement (or, such shorter period agreed to by the Company with a third party who is provided access to the Confidential Information for the purpose of evaluating a possible Transaction, the “Standstill Period”), unless expressly requested by the Company or its Board of Directors (or any committee thereof) in writing, the Receiving Party shall not (and shall cause its affiliates not to and shall cause its and their respective Representatives acting at its and their respective behalf not to): (a) in any manner acting alone or in concert with others, acquire, agree to acquire or make any proposal to acquire, directly or indirectly, by means of purchase, merger, business combination or in any other manner, beneficial ownership of any securities of the Company, direct or indirect rights to acquire any securities of the Company (including any derivative securities with economic equivalents of ownership of any of such securities), any right to vote or to direct the voting of any securities of the Company or any assets of the Company, (b) make, or in any way participate in, directly or indirectly, any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote, or seek to advise or influence any person with respect to the voting of, any voting securities of the Company, (c) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) with respect to any voting securities of the Company, other than any group comprised solely of the Receiving Party and its affiliates, (d) otherwise act, alone or in concert with others, to seek to control, advise, change or influence the management, board of directors, governing instruments, policies or affairs of the Company, (e) make any public disclosure, or take any action that could require the Company to make any public disclosure, with respect to any of the matters set forth in this Agreement, other than the required amendment to the Receiving Party’s Schedule 13D filing as a result of the execution and delivery of this Agreement, (f) disclose any intention, plan or arrangement inconsistent with the foregoing or (g) have any discussions or enter into any arrangements (whether written or oral) with, or advise, assist or encourage any other persons in connection with any of the foregoing. The Receiving Party also agrees during such period not to request the Company or any of the Company Representatives, directly or indirectly, to amend or waive any provision of this Section 6 (including this sentence). Notwithstanding any provision in this Agreement to the contrary, (i) the Standstill Period shall terminate immediately if, after the date of this Agreement, (A) the Company enters into a definitive agreement with a third party to effectuate a sale of 50% or more of the consolidated assets of the Company or 50% or more of the Company’s outstanding equity securities, (B) the Company publicly announces the conclusion of its previously announced strategic review process without a definitive agreement to sell the Company, (C) the Company makes an assignment for the benefit of creditors or commences any proceeding under any bankruptcy reorganization, insolvency, dissolution or liquidation law of any jurisdiction or (D) any bankruptcy petition is filed or any such proceeding is commenced against the Company and either (1) the Company indicates its approval thereof, consent thereto or acquiescence therein, or (2) such petition application or proceeding is not dismissed within 30 days and (ii) the Standstill Period solely with respect to clause (b) of this Section 6 shall terminate ten days prior to the expiration of the applicable time period for stockholders to nominate directors for election at the Company’s 2012 annual stockholders meeting to be scheduled in accordance with Section 8 hereof (and, for the avoidance of doubt, the restrictions in clauses (c), (d), (e), (f) and (g) of this Section 6 shall not apply to the activities that were previously expressly prohibited by clause (b) of this Section 6 in the event the restrictions in clause (b) are terminated pursuant to this clause (ii)).
7. Return of Confidential Information. Promptly upon the written request of the Company, the Receiving Party will return all copies of the Confidential Information to the Company, and all notes, studies, reports, memoranda and other documents or materials prepared by the Receiving Party or its Representatives that contain or reflect any Confidential Information shall be destroyed. Notwithstanding the return to the Company or destruction of Confidential Information pursuant to this Section 7, the Receiving Party and its Representatives will continue to be bound by their confidentiality obligations and other obligations under this Agreement for the term hereof. Notwithstanding the foregoing, (a) the Receiving Party’s legal department and/or outside counsel may keep one copy of the Confidential Information (in electronic or paper form) and, with respect to the Receiving Party’s Representatives who are accounting firms, such firms may keep one copy of the Confidential Information, in each case, if required to comply with applicable law or regulation and (b) the Receiving Party and its Representatives may retain Confidential Information to the extent it is “backed-up” on its or their (as the case may be) electronic information management and communications systems or servers, is not available to an end user and cannot be expunged without considerable effort; provided, that any such information so retained pursuant to clauses (a) and (b) of this Section 7 shall be held in compliance with the terms of this Agreement for a period of eighteen months from the date hereof.
8. 2012 Annual Stockholders Meeting. The Company agrees (a) that the meeting date for its 2012 annual stockholders meeting (with respect to the Company’s fiscal year ended January 28, 2012) will be held no earlier than thirty-one days after the first anniversary of the Company’s 2011 annual stockholders meeting (with respect to the Company’s fiscal year ended January 29, 2011) and (b) to provide the Receiving Party a copy of the press release announcing the date of its 2012 annual meeting on the date such press release is publicly issued.
9. Subpoena or Court Order. In the event that the Receiving Party or anyone to whom it discloses the Confidential Information receives a request to disclose all or any part of the Confidential Information or Discussion Information under the terms of a subpoena or other order issued by a court of competent jurisdiction or by another governmental agency, the Receiving Party shall if permitted pursuant to applicable law (a) promptly notify the Company of the existence, terms and circumstances surrounding such a request, (b) consult with the Company on the advisability of taking steps to resist or narrow such request, (c) if disclosure of such Confidential Information or Discussion Information is required, furnish only such portion of the Confidential Information or Discussion Information as the Receiving Party is advised by its legal counsel is legally required to be disclosed and (d) if requested by the Company, cooperate with the Company in its efforts to obtain a protective order or other relief to prevent the disclosure of the Confidential Information or Discussion Information or other reliable assurance that confidential treatment will be accorded to such portion of the Confidential Information or Discussion Information, as applicable, that is required to be disclosed.
10. Definitive Agreement. Unless and until a definitive written agreement between the Receiving Party and the Company with respect to a Transaction has been executed and delivered, neither the Receiving Party nor the Company will be under
any legal obligation of any kind whatsoever with respect to such a Transaction by virtue of this or any other written or oral expression by either of them or their Representatives except, in the case of this Agreement, for the matters specifically agreed to herein.
11. Remedies. Each of the parties hereto acknowledges that in the event of any breach of the terms of this Agreement, the other party could not be made whole by monetary damages only. Accordingly, each of the parties hereto, in addition to any other remedy to which it may be entitled in law or in equity, shall be entitled to an injunction (which shall include a temporary restraining order) to prevent breaches of the terms of this Agreement.
12. Communications. Without the Company’s prior written consent, which may be withheld by the Company in its sole discretion, the Receiving Party shall not (and shall cause its Representatives not to) initiate, other than through the Company’s financial and legal advisors or such other persons, as designated by the Company in writing, any (a) communication concerning the Confidential Information, (b) requests for meetings with management of the Company in connection with the possible Transaction or other transaction between the parties or (c) communication relating to the business of the Company or the possible Transaction, in each case, with any officer, director or employee of the Company.
13. Securities Laws. The Receiving Party acknowledges that it is aware and that the Receiving Party and its Representatives have been advised that the United States securities laws prohibit any person having non-public material information about a company from purchasing or selling securities of that company or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities.
14. Entire Agreement; Amendments. This Agreement represents the entire understanding and agreement of the parties hereto with respect to the matters contained herein, and may be amended, modified or waived only by a separate writing executed by the Receiving Party and the Company expressly so amending, modifying or waiving this Agreement. This Agreement shall inure to the benefit of and be binding upon the parties and their respective successors and assigns.
15. No Waiver. No failure or delay by either party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder.
16. Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of New York, without regard to the laws of conflict of laws. Each of the parties hereto: (a) irrevocably and unconditionally consents and submits to the jurisdiction of the state and federal courts located in the State of New York for purposes of any action, suit or proceeding arising out of or relating to this Agreement; (b) agrees that service of any process, summons, notice or document by U.S. registered mail to the address set forth at the end of this Agreement shall be effective service of process for any action, suit or proceeding brought against such party; (c) irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of or relating to this Agreement in any state or federal court located in the State of New York; and (d) irrevocably and unconditionally waives the right to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any action, suit or proceeding arising out of or relating to this Agreement that is brought in any state or federal court located in the State of New York has been brought in an inconvenient forum.
17. Expenses. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines that a party has breached this Agreement, then such party shall be liable and pay to the non-breaching party the legal fees and expenses such non-breaching party has incurred in connection with such litigation, including any appeal therefrom.
18. Captions. The Captions contained in this Agreement are for convenience only and shall not affect the construction or interpretation of any provisions of this Agreement.
19. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same Agreement.
20. Severability. In the event any term of this Agreement is found by any court to be void or otherwise unenforceable, the remainder of this Agreement shall remain valid and enforceable as though such term were absent upon the date of its execution.
21. Notices. All notices and other communications required or permitted hereunder will be in writing and will be deemed to have been duly given when delivered in person or when dispatched by email or electronic facsimile transfer (with such facsimile confirmed in writing by mail simultaneously dispatched) to the Company at the address specified below:
The Talbots, Inc.
Attention: Chief Operating Officer
One Talbots Drive
Hingham, MA 02043
Telephone: 781-741-7600
Facsimile: 781-741-4927
with copies to:
The Talbots, Inc.
Attention: General Counsel
211 South Ridge St.
Rye Brook, NY 10573
Telephone: 914-934-8877
Facsimile: 914-934-9136
and
Dewey & LeBoeuf LLP
Attention: Morton A. Pierce, Esq.
Chang-Do Gong, Esq.
1301 Avenue of the Americas
New York, NY 10019
Telephone: 212-259-8000
Facsimile: 212-259-6333
22. Non-Private Equity Affiliates. Notwithstanding anything to the contrary provided elsewhere herein, none of the provisions of this Agreement shall in any way limit the ordinary course business services and activities of the Receiving Party and its affiliates; provided, that (a) such services and activities are distinct from the private equity business and (b) the Confidential Information is not made available to Representatives of the Receiving Party and its affiliates who are not involved in the private equity business or who are engaged in investments that are not private equity investments and such ordinary course business services and activities are otherwise conducted without any reference to, or use of, the Confidential Information. The Receiving Party further represents to the Company that the Receiving Party has implemented appropriate internal restrictions on the sharing of confidential information (including, without limitation, the implementation of ethical walls around certain affiliates, to comply with federal securities laws of the United States).
23. Termination. Except as otherwise specified herein, the obligations of the parties set forth in this Agreement shall terminate and be of no further force and effect eighteen months from the date hereof.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, THIS AGREEMENT is executed and delivered effective as of the date first written above.
THE TALBOTS, INC.
By /s/ Richard T. O’Connell, Jr.
Name: Richard T. O’Connell, Jr.
Title: Executive Vice President
SYCAMORE PARTNERS MANAGEMENT, L.L.C.
By /s/ Stefan Kaluzny
Name: /s/ Stefan Kaluzny
Title: Managing Director
| Entailment |
538_nda-13 | 538_nda-13_0 | Q: Receiving Party may acquire information similar to Confidential Information from a third party.
Text: STRICTLY CONFIDENTIAL
January 27, 2012
Sycamore Partners Management, L.L.C.
9 West 57 Street, 31 Floorthst
New York, New York 10019
Attention: Stefan Kaluzny
Managing Director
Dear Mr. Kaluzny:
CONFIDENTIALITY AGREEMENT
This Confidentiality Agreement (this “Agreement”) is dated as of January 27, 2012 by and between Sycamore Partners Management, L.L.C., a Delaware limited liability company (the “Receiving Party”) and The Talbots, Inc., a Delaware corporation (together with its subsidiaries, the “Company”).
1. Confidential Information; Representatives. (a) The Receiving Party is considering a possible business combination transaction (whether negotiated directly with the Company’s Board of Directors or otherwise) with respect to the Company (the “Transaction”), and, in order to assist the Receiving Party in evaluating the possible Transaction, the Company is prepared to make available to the Receiving Party certain information concerning the business, operations, strategy and prospects of the Company (all such information, the “Confidential Information”). As a condition to the Confidential Information being furnished to the Receiving Party and the directors, officers, principals, partners, members, employees, agents, consultants, related investment funds, advisors, attorneys, accountants, affiliates, potential sources of capital and financing, and financial advisors (collectively, “Representatives”) of the Receiving Party, the Receiving Party agrees to treat the Confidential Information strictly in accordance with the provisions of this Agreement and to otherwise comply, and to cause its Representatives to comply, with all obligations hereinafter set forth.
(b) The term “Confidential Information” shall include, without limitation, any and all information concerning the Company and its business, operations, strategic initiatives, financing, employees, strategies or prospects that is furnished to the Receiving Party or its Representatives by or on behalf of the Company, whether furnished before or after the date of this Agreement, including, without limitation, any written or oral analyses, business or strategic plans, compilations, studies, data, reports, interpretations, projections, forecasts, records, notes, copies, excerpts, memoranda, documents or other materials (in whatever form maintained or conveyed, whether documentary, computerized, verbal form or otherwise), that contain or otherwise reflect Confidential Information concerning the Company or its business, operations, strategic
initiatives, financing, employees, strategies or prospects prepared by or on behalf of the Receiving Party, any of the Receiving Party’s Representatives, the Company or any Company Representatives (as defined below) or that otherwise reflect any conversations with Company Representatives involving or relating to the Confidential Information.
2. Excluded Information. The Confidential Information shall not include information that the Receiving Party can demonstrate (a) is or becomes available to the public other than as a result of acts by the Receiving Party or its Representatives in breach of the terms of this Agreement, (b) was in the Receiving Party’s possession prior to disclosure by the Company, provided that such information, to the Receiving Party’s knowledge, was not subject to another confidentiality agreement with the Company or another party, (c) has been independently developed by the Receiving Party without reference to, or the use of, any Confidential Information or (d) is disclosed to the Receiving Party by a third party, to the Receiving Party’s knowledge, not bound by any duty or obligation of confidentiality on a non-confidential basis.
3. Limitations on Use and Disclosure of Confidential Information. (a) The Receiving Party shall, and shall cause its Representatives to, use the Confidential Information solely for the purpose of evaluating a possible Transaction. The Receiving Party shall, and shall cause its Representatives to, keep the Confidential Information in confidence and shall not disclose any of the Confidential Information in any manner whatsoever; provided, however, that (i) the Receiving Party may make disclosure of information contained in the Confidential Information if required by applicable law, regulation or legal or regulatory process; provided, that the Receiving Party shall have first complied with the terms of Section 9 hereof, (ii) the Receiving Party may make disclosure of information contained in the Confidential Information to the extent that the Company gives its prior written consent, and (iii) any information contained in the Confidential Information may be disclosed to the Receiving Party’s Representatives who reasonably require access to such information for the purpose of evaluating a possible Transaction and who agree to keep such information in confidence to the same extent as described herein; provided, further, that the Receiving Party shall not make any disclosure of any Confidential Information to any potential sources of equity financing without the Company’s prior written consent. The Receiving Party shall be responsible for any breach of the terms of this Agreement by the Receiving Party or by any of its Representatives.
(b) The Receiving Party agrees that, for a period of eighteen months from the date of this Agreement, the Receiving Party shall not (and shall cause its affiliates, subject to Section 22 hereof, not to), directly or indirectly, (i) use the Confidential Information to divert or attempt to divert any business or customer of the Company or (ii) employ or solicit, or initiate contact for employment with, any (A) director, officer or other senior or key employee of the Company or (B) any other employee of the Company whom the Receiving Party meets during its evaluation of the possible Transaction or about whom the Receiving Party receives Confidential Information; provided, however, a general advertisement or other recruiting efforts not specifically targeting any such employees of the Company shall not be considered a solicitation or unauthorized hiring.
(c) If the Receiving Party discovers any unauthorized disclosure or use of any Confidential Information by it or its Representatives, the Receiving Party hereby covenants to promptly notify the Company in writing of any such unauthorized disclosure or use.
4. Non-Disclosure of Existence of Negotiations. Without the prior written consent of the Company or except as may be required by applicable law or regulation, the Receiving Party and its Representatives shall not disclose to any person that any discussions or negotiations are taking place between the parties concerning a possible Transaction, including the content, timing and status of such discussions or negotiations (the “Discussion Information”).
5. No Representations by the Company. The Company will have the exclusive authority to decide what Confidential Information (if any) is to be made available to the Receiving Party and its Representatives. Neither the Company nor any of its directors, officers, employees, agents, consultants, advisors, attorneys, accountants and affiliates (collectively, the “Company Representatives”) will be under any obligation to make any particular Confidential Information available to the Receiving Party or any of the Receiving Party’s Representatives or to supplement or update any Confidential Information previously furnished. Neither the Company nor any of the Company Representatives has made or is making any representation or warranty, express or implied, as to the accuracy or completeness of any Confidential Information, and neither the Company nor any of the Company Representatives will have any liability to the Receiving Party or to any of the Receiving Party’s Representatives relating to or resulting from the use of any Confidential Information or any inaccuracies or errors therein or omissions therefrom. Only those representations and warranties (if any) that are included in any final definitive written agreement that provides for the consummation of a negotiated transaction between the Receiving Party and the Company and is validly executed on behalf of the Receiving Party and the Company will have legal effect.
6. Standstill Agreement. In consideration of the Confidential Information being furnished to the Receiving Party pursuant to this Agreement, the Receiving Party agrees that, for a period of one year from the date of this Agreement (or, such shorter period agreed to by the Company with a third party who is provided access to the Confidential Information for the purpose of evaluating a possible Transaction, the “Standstill Period”), unless expressly requested by the Company or its Board of Directors (or any committee thereof) in writing, the Receiving Party shall not (and shall cause its affiliates not to and shall cause its and their respective Representatives acting at its and their respective behalf not to): (a) in any manner acting alone or in concert with others, acquire, agree to acquire or make any proposal to acquire, directly or indirectly, by means of purchase, merger, business combination or in any other manner, beneficial ownership of any securities of the Company, direct or indirect rights to acquire any securities of the Company (including any derivative securities with economic equivalents of ownership of any of such securities), any right to vote or to direct the voting of any securities of the Company or any assets of the Company, (b) make, or in any way participate in, directly or indirectly, any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote, or seek to advise or influence any person with respect to the voting of, any voting securities of the Company, (c) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) with respect to any voting securities of the Company, other than any group comprised solely of the Receiving Party and its affiliates, (d) otherwise act, alone or in concert with others, to seek to control, advise, change or influence the management, board of directors, governing instruments, policies or affairs of the Company, (e) make any public disclosure, or take any action that could require the Company to make any public disclosure, with respect to any of the matters set forth in this Agreement, other than the required amendment to the Receiving Party’s Schedule 13D filing as a result of the execution and delivery of this Agreement, (f) disclose any intention, plan or arrangement inconsistent with the foregoing or (g) have any discussions or enter into any arrangements (whether written or oral) with, or advise, assist or encourage any other persons in connection with any of the foregoing. The Receiving Party also agrees during such period not to request the Company or any of the Company Representatives, directly or indirectly, to amend or waive any provision of this Section 6 (including this sentence). Notwithstanding any provision in this Agreement to the contrary, (i) the Standstill Period shall terminate immediately if, after the date of this Agreement, (A) the Company enters into a definitive agreement with a third party to effectuate a sale of 50% or more of the consolidated assets of the Company or 50% or more of the Company’s outstanding equity securities, (B) the Company publicly announces the conclusion of its previously announced strategic review process without a definitive agreement to sell the Company, (C) the Company makes an assignment for the benefit of creditors or commences any proceeding under any bankruptcy reorganization, insolvency, dissolution or liquidation law of any jurisdiction or (D) any bankruptcy petition is filed or any such proceeding is commenced against the Company and either (1) the Company indicates its approval thereof, consent thereto or acquiescence therein, or (2) such petition application or proceeding is not dismissed within 30 days and (ii) the Standstill Period solely with respect to clause (b) of this Section 6 shall terminate ten days prior to the expiration of the applicable time period for stockholders to nominate directors for election at the Company’s 2012 annual stockholders meeting to be scheduled in accordance with Section 8 hereof (and, for the avoidance of doubt, the restrictions in clauses (c), (d), (e), (f) and (g) of this Section 6 shall not apply to the activities that were previously expressly prohibited by clause (b) of this Section 6 in the event the restrictions in clause (b) are terminated pursuant to this clause (ii)).
7. Return of Confidential Information. Promptly upon the written request of the Company, the Receiving Party will return all copies of the Confidential Information to the Company, and all notes, studies, reports, memoranda and other documents or materials prepared by the Receiving Party or its Representatives that contain or reflect any Confidential Information shall be destroyed. Notwithstanding the return to the Company or destruction of Confidential Information pursuant to this Section 7, the Receiving Party and its Representatives will continue to be bound by their confidentiality obligations and other obligations under this Agreement for the term hereof. Notwithstanding the foregoing, (a) the Receiving Party’s legal department and/or outside counsel may keep one copy of the Confidential Information (in electronic or paper form) and, with respect to the Receiving Party’s Representatives who are accounting firms, such firms may keep one copy of the Confidential Information, in each case, if required to comply with applicable law or regulation and (b) the Receiving Party and its Representatives may retain Confidential Information to the extent it is “backed-up” on its or their (as the case may be) electronic information management and communications systems or servers, is not available to an end user and cannot be expunged without considerable effort; provided, that any such information so retained pursuant to clauses (a) and (b) of this Section 7 shall be held in compliance with the terms of this Agreement for a period of eighteen months from the date hereof.
8. 2012 Annual Stockholders Meeting. The Company agrees (a) that the meeting date for its 2012 annual stockholders meeting (with respect to the Company’s fiscal year ended January 28, 2012) will be held no earlier than thirty-one days after the first anniversary of the Company’s 2011 annual stockholders meeting (with respect to the Company’s fiscal year ended January 29, 2011) and (b) to provide the Receiving Party a copy of the press release announcing the date of its 2012 annual meeting on the date such press release is publicly issued.
9. Subpoena or Court Order. In the event that the Receiving Party or anyone to whom it discloses the Confidential Information receives a request to disclose all or any part of the Confidential Information or Discussion Information under the terms of a subpoena or other order issued by a court of competent jurisdiction or by another governmental agency, the Receiving Party shall if permitted pursuant to applicable law (a) promptly notify the Company of the existence, terms and circumstances surrounding such a request, (b) consult with the Company on the advisability of taking steps to resist or narrow such request, (c) if disclosure of such Confidential Information or Discussion Information is required, furnish only such portion of the Confidential Information or Discussion Information as the Receiving Party is advised by its legal counsel is legally required to be disclosed and (d) if requested by the Company, cooperate with the Company in its efforts to obtain a protective order or other relief to prevent the disclosure of the Confidential Information or Discussion Information or other reliable assurance that confidential treatment will be accorded to such portion of the Confidential Information or Discussion Information, as applicable, that is required to be disclosed.
10. Definitive Agreement. Unless and until a definitive written agreement between the Receiving Party and the Company with respect to a Transaction has been executed and delivered, neither the Receiving Party nor the Company will be under
any legal obligation of any kind whatsoever with respect to such a Transaction by virtue of this or any other written or oral expression by either of them or their Representatives except, in the case of this Agreement, for the matters specifically agreed to herein.
11. Remedies. Each of the parties hereto acknowledges that in the event of any breach of the terms of this Agreement, the other party could not be made whole by monetary damages only. Accordingly, each of the parties hereto, in addition to any other remedy to which it may be entitled in law or in equity, shall be entitled to an injunction (which shall include a temporary restraining order) to prevent breaches of the terms of this Agreement.
12. Communications. Without the Company’s prior written consent, which may be withheld by the Company in its sole discretion, the Receiving Party shall not (and shall cause its Representatives not to) initiate, other than through the Company’s financial and legal advisors or such other persons, as designated by the Company in writing, any (a) communication concerning the Confidential Information, (b) requests for meetings with management of the Company in connection with the possible Transaction or other transaction between the parties or (c) communication relating to the business of the Company or the possible Transaction, in each case, with any officer, director or employee of the Company.
13. Securities Laws. The Receiving Party acknowledges that it is aware and that the Receiving Party and its Representatives have been advised that the United States securities laws prohibit any person having non-public material information about a company from purchasing or selling securities of that company or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities.
14. Entire Agreement; Amendments. This Agreement represents the entire understanding and agreement of the parties hereto with respect to the matters contained herein, and may be amended, modified or waived only by a separate writing executed by the Receiving Party and the Company expressly so amending, modifying or waiving this Agreement. This Agreement shall inure to the benefit of and be binding upon the parties and their respective successors and assigns.
15. No Waiver. No failure or delay by either party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder.
16. Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of New York, without regard to the laws of conflict of laws. Each of the parties hereto: (a) irrevocably and unconditionally consents and submits to the jurisdiction of the state and federal courts located in the State of New York for purposes of any action, suit or proceeding arising out of or relating to this Agreement; (b) agrees that service of any process, summons, notice or document by U.S. registered mail to the address set forth at the end of this Agreement shall be effective service of process for any action, suit or proceeding brought against such party; (c) irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of or relating to this Agreement in any state or federal court located in the State of New York; and (d) irrevocably and unconditionally waives the right to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any action, suit or proceeding arising out of or relating to this Agreement that is brought in any state or federal court located in the State of New York has been brought in an inconvenient forum.
17. Expenses. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines that a party has breached this Agreement, then such party shall be liable and pay to the non-breaching party the legal fees and expenses such non-breaching party has incurred in connection with such litigation, including any appeal therefrom.
18. Captions. The Captions contained in this Agreement are for convenience only and shall not affect the construction or interpretation of any provisions of this Agreement.
19. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same Agreement.
20. Severability. In the event any term of this Agreement is found by any court to be void or otherwise unenforceable, the remainder of this Agreement shall remain valid and enforceable as though such term were absent upon the date of its execution.
21. Notices. All notices and other communications required or permitted hereunder will be in writing and will be deemed to have been duly given when delivered in person or when dispatched by email or electronic facsimile transfer (with such facsimile confirmed in writing by mail simultaneously dispatched) to the Company at the address specified below:
The Talbots, Inc.
Attention: Chief Operating Officer
One Talbots Drive
Hingham, MA 02043
Telephone: 781-741-7600
Facsimile: 781-741-4927
with copies to:
The Talbots, Inc.
Attention: General Counsel
211 South Ridge St.
Rye Brook, NY 10573
Telephone: 914-934-8877
Facsimile: 914-934-9136
and
Dewey & LeBoeuf LLP
Attention: Morton A. Pierce, Esq.
Chang-Do Gong, Esq.
1301 Avenue of the Americas
New York, NY 10019
Telephone: 212-259-8000
Facsimile: 212-259-6333
22. Non-Private Equity Affiliates. Notwithstanding anything to the contrary provided elsewhere herein, none of the provisions of this Agreement shall in any way limit the ordinary course business services and activities of the Receiving Party and its affiliates; provided, that (a) such services and activities are distinct from the private equity business and (b) the Confidential Information is not made available to Representatives of the Receiving Party and its affiliates who are not involved in the private equity business or who are engaged in investments that are not private equity investments and such ordinary course business services and activities are otherwise conducted without any reference to, or use of, the Confidential Information. The Receiving Party further represents to the Company that the Receiving Party has implemented appropriate internal restrictions on the sharing of confidential information (including, without limitation, the implementation of ethical walls around certain affiliates, to comply with federal securities laws of the United States).
23. Termination. Except as otherwise specified herein, the obligations of the parties set forth in this Agreement shall terminate and be of no further force and effect eighteen months from the date hereof.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, THIS AGREEMENT is executed and delivered effective as of the date first written above.
THE TALBOTS, INC.
By /s/ Richard T. O’Connell, Jr.
Name: Richard T. O’Connell, Jr.
Title: Executive Vice President
SYCAMORE PARTNERS MANAGEMENT, L.L.C.
By /s/ Stefan Kaluzny
Name: /s/ Stefan Kaluzny
Title: Managing Director
| Entailment |
538_nda-5 | 538_nda-5_0 | Q: Receiving Party may share some Confidential Information with some of Receiving Party's employees.
Text: STRICTLY CONFIDENTIAL
January 27, 2012
Sycamore Partners Management, L.L.C.
9 West 57 Street, 31 Floorthst
New York, New York 10019
Attention: Stefan Kaluzny
Managing Director
Dear Mr. Kaluzny:
CONFIDENTIALITY AGREEMENT
This Confidentiality Agreement (this “Agreement”) is dated as of January 27, 2012 by and between Sycamore Partners Management, L.L.C., a Delaware limited liability company (the “Receiving Party”) and The Talbots, Inc., a Delaware corporation (together with its subsidiaries, the “Company”).
1. Confidential Information; Representatives. (a) The Receiving Party is considering a possible business combination transaction (whether negotiated directly with the Company’s Board of Directors or otherwise) with respect to the Company (the “Transaction”), and, in order to assist the Receiving Party in evaluating the possible Transaction, the Company is prepared to make available to the Receiving Party certain information concerning the business, operations, strategy and prospects of the Company (all such information, the “Confidential Information”). As a condition to the Confidential Information being furnished to the Receiving Party and the directors, officers, principals, partners, members, employees, agents, consultants, related investment funds, advisors, attorneys, accountants, affiliates, potential sources of capital and financing, and financial advisors (collectively, “Representatives”) of the Receiving Party, the Receiving Party agrees to treat the Confidential Information strictly in accordance with the provisions of this Agreement and to otherwise comply, and to cause its Representatives to comply, with all obligations hereinafter set forth.
(b) The term “Confidential Information” shall include, without limitation, any and all information concerning the Company and its business, operations, strategic initiatives, financing, employees, strategies or prospects that is furnished to the Receiving Party or its Representatives by or on behalf of the Company, whether furnished before or after the date of this Agreement, including, without limitation, any written or oral analyses, business or strategic plans, compilations, studies, data, reports, interpretations, projections, forecasts, records, notes, copies, excerpts, memoranda, documents or other materials (in whatever form maintained or conveyed, whether documentary, computerized, verbal form or otherwise), that contain or otherwise reflect Confidential Information concerning the Company or its business, operations, strategic
initiatives, financing, employees, strategies or prospects prepared by or on behalf of the Receiving Party, any of the Receiving Party’s Representatives, the Company or any Company Representatives (as defined below) or that otherwise reflect any conversations with Company Representatives involving or relating to the Confidential Information.
2. Excluded Information. The Confidential Information shall not include information that the Receiving Party can demonstrate (a) is or becomes available to the public other than as a result of acts by the Receiving Party or its Representatives in breach of the terms of this Agreement, (b) was in the Receiving Party’s possession prior to disclosure by the Company, provided that such information, to the Receiving Party’s knowledge, was not subject to another confidentiality agreement with the Company or another party, (c) has been independently developed by the Receiving Party without reference to, or the use of, any Confidential Information or (d) is disclosed to the Receiving Party by a third party, to the Receiving Party’s knowledge, not bound by any duty or obligation of confidentiality on a non-confidential basis.
3. Limitations on Use and Disclosure of Confidential Information. (a) The Receiving Party shall, and shall cause its Representatives to, use the Confidential Information solely for the purpose of evaluating a possible Transaction. The Receiving Party shall, and shall cause its Representatives to, keep the Confidential Information in confidence and shall not disclose any of the Confidential Information in any manner whatsoever; provided, however, that (i) the Receiving Party may make disclosure of information contained in the Confidential Information if required by applicable law, regulation or legal or regulatory process; provided, that the Receiving Party shall have first complied with the terms of Section 9 hereof, (ii) the Receiving Party may make disclosure of information contained in the Confidential Information to the extent that the Company gives its prior written consent, and (iii) any information contained in the Confidential Information may be disclosed to the Receiving Party’s Representatives who reasonably require access to such information for the purpose of evaluating a possible Transaction and who agree to keep such information in confidence to the same extent as described herein; provided, further, that the Receiving Party shall not make any disclosure of any Confidential Information to any potential sources of equity financing without the Company’s prior written consent. The Receiving Party shall be responsible for any breach of the terms of this Agreement by the Receiving Party or by any of its Representatives.
(b) The Receiving Party agrees that, for a period of eighteen months from the date of this Agreement, the Receiving Party shall not (and shall cause its affiliates, subject to Section 22 hereof, not to), directly or indirectly, (i) use the Confidential Information to divert or attempt to divert any business or customer of the Company or (ii) employ or solicit, or initiate contact for employment with, any (A) director, officer or other senior or key employee of the Company or (B) any other employee of the Company whom the Receiving Party meets during its evaluation of the possible Transaction or about whom the Receiving Party receives Confidential Information; provided, however, a general advertisement or other recruiting efforts not specifically targeting any such employees of the Company shall not be considered a solicitation or unauthorized hiring.
(c) If the Receiving Party discovers any unauthorized disclosure or use of any Confidential Information by it or its Representatives, the Receiving Party hereby covenants to promptly notify the Company in writing of any such unauthorized disclosure or use.
4. Non-Disclosure of Existence of Negotiations. Without the prior written consent of the Company or except as may be required by applicable law or regulation, the Receiving Party and its Representatives shall not disclose to any person that any discussions or negotiations are taking place between the parties concerning a possible Transaction, including the content, timing and status of such discussions or negotiations (the “Discussion Information”).
5. No Representations by the Company. The Company will have the exclusive authority to decide what Confidential Information (if any) is to be made available to the Receiving Party and its Representatives. Neither the Company nor any of its directors, officers, employees, agents, consultants, advisors, attorneys, accountants and affiliates (collectively, the “Company Representatives”) will be under any obligation to make any particular Confidential Information available to the Receiving Party or any of the Receiving Party’s Representatives or to supplement or update any Confidential Information previously furnished. Neither the Company nor any of the Company Representatives has made or is making any representation or warranty, express or implied, as to the accuracy or completeness of any Confidential Information, and neither the Company nor any of the Company Representatives will have any liability to the Receiving Party or to any of the Receiving Party’s Representatives relating to or resulting from the use of any Confidential Information or any inaccuracies or errors therein or omissions therefrom. Only those representations and warranties (if any) that are included in any final definitive written agreement that provides for the consummation of a negotiated transaction between the Receiving Party and the Company and is validly executed on behalf of the Receiving Party and the Company will have legal effect.
6. Standstill Agreement. In consideration of the Confidential Information being furnished to the Receiving Party pursuant to this Agreement, the Receiving Party agrees that, for a period of one year from the date of this Agreement (or, such shorter period agreed to by the Company with a third party who is provided access to the Confidential Information for the purpose of evaluating a possible Transaction, the “Standstill Period”), unless expressly requested by the Company or its Board of Directors (or any committee thereof) in writing, the Receiving Party shall not (and shall cause its affiliates not to and shall cause its and their respective Representatives acting at its and their respective behalf not to): (a) in any manner acting alone or in concert with others, acquire, agree to acquire or make any proposal to acquire, directly or indirectly, by means of purchase, merger, business combination or in any other manner, beneficial ownership of any securities of the Company, direct or indirect rights to acquire any securities of the Company (including any derivative securities with economic equivalents of ownership of any of such securities), any right to vote or to direct the voting of any securities of the Company or any assets of the Company, (b) make, or in any way participate in, directly or indirectly, any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote, or seek to advise or influence any person with respect to the voting of, any voting securities of the Company, (c) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) with respect to any voting securities of the Company, other than any group comprised solely of the Receiving Party and its affiliates, (d) otherwise act, alone or in concert with others, to seek to control, advise, change or influence the management, board of directors, governing instruments, policies or affairs of the Company, (e) make any public disclosure, or take any action that could require the Company to make any public disclosure, with respect to any of the matters set forth in this Agreement, other than the required amendment to the Receiving Party’s Schedule 13D filing as a result of the execution and delivery of this Agreement, (f) disclose any intention, plan or arrangement inconsistent with the foregoing or (g) have any discussions or enter into any arrangements (whether written or oral) with, or advise, assist or encourage any other persons in connection with any of the foregoing. The Receiving Party also agrees during such period not to request the Company or any of the Company Representatives, directly or indirectly, to amend or waive any provision of this Section 6 (including this sentence). Notwithstanding any provision in this Agreement to the contrary, (i) the Standstill Period shall terminate immediately if, after the date of this Agreement, (A) the Company enters into a definitive agreement with a third party to effectuate a sale of 50% or more of the consolidated assets of the Company or 50% or more of the Company’s outstanding equity securities, (B) the Company publicly announces the conclusion of its previously announced strategic review process without a definitive agreement to sell the Company, (C) the Company makes an assignment for the benefit of creditors or commences any proceeding under any bankruptcy reorganization, insolvency, dissolution or liquidation law of any jurisdiction or (D) any bankruptcy petition is filed or any such proceeding is commenced against the Company and either (1) the Company indicates its approval thereof, consent thereto or acquiescence therein, or (2) such petition application or proceeding is not dismissed within 30 days and (ii) the Standstill Period solely with respect to clause (b) of this Section 6 shall terminate ten days prior to the expiration of the applicable time period for stockholders to nominate directors for election at the Company’s 2012 annual stockholders meeting to be scheduled in accordance with Section 8 hereof (and, for the avoidance of doubt, the restrictions in clauses (c), (d), (e), (f) and (g) of this Section 6 shall not apply to the activities that were previously expressly prohibited by clause (b) of this Section 6 in the event the restrictions in clause (b) are terminated pursuant to this clause (ii)).
7. Return of Confidential Information. Promptly upon the written request of the Company, the Receiving Party will return all copies of the Confidential Information to the Company, and all notes, studies, reports, memoranda and other documents or materials prepared by the Receiving Party or its Representatives that contain or reflect any Confidential Information shall be destroyed. Notwithstanding the return to the Company or destruction of Confidential Information pursuant to this Section 7, the Receiving Party and its Representatives will continue to be bound by their confidentiality obligations and other obligations under this Agreement for the term hereof. Notwithstanding the foregoing, (a) the Receiving Party’s legal department and/or outside counsel may keep one copy of the Confidential Information (in electronic or paper form) and, with respect to the Receiving Party’s Representatives who are accounting firms, such firms may keep one copy of the Confidential Information, in each case, if required to comply with applicable law or regulation and (b) the Receiving Party and its Representatives may retain Confidential Information to the extent it is “backed-up” on its or their (as the case may be) electronic information management and communications systems or servers, is not available to an end user and cannot be expunged without considerable effort; provided, that any such information so retained pursuant to clauses (a) and (b) of this Section 7 shall be held in compliance with the terms of this Agreement for a period of eighteen months from the date hereof.
8. 2012 Annual Stockholders Meeting. The Company agrees (a) that the meeting date for its 2012 annual stockholders meeting (with respect to the Company’s fiscal year ended January 28, 2012) will be held no earlier than thirty-one days after the first anniversary of the Company’s 2011 annual stockholders meeting (with respect to the Company’s fiscal year ended January 29, 2011) and (b) to provide the Receiving Party a copy of the press release announcing the date of its 2012 annual meeting on the date such press release is publicly issued.
9. Subpoena or Court Order. In the event that the Receiving Party or anyone to whom it discloses the Confidential Information receives a request to disclose all or any part of the Confidential Information or Discussion Information under the terms of a subpoena or other order issued by a court of competent jurisdiction or by another governmental agency, the Receiving Party shall if permitted pursuant to applicable law (a) promptly notify the Company of the existence, terms and circumstances surrounding such a request, (b) consult with the Company on the advisability of taking steps to resist or narrow such request, (c) if disclosure of such Confidential Information or Discussion Information is required, furnish only such portion of the Confidential Information or Discussion Information as the Receiving Party is advised by its legal counsel is legally required to be disclosed and (d) if requested by the Company, cooperate with the Company in its efforts to obtain a protective order or other relief to prevent the disclosure of the Confidential Information or Discussion Information or other reliable assurance that confidential treatment will be accorded to such portion of the Confidential Information or Discussion Information, as applicable, that is required to be disclosed.
10. Definitive Agreement. Unless and until a definitive written agreement between the Receiving Party and the Company with respect to a Transaction has been executed and delivered, neither the Receiving Party nor the Company will be under
any legal obligation of any kind whatsoever with respect to such a Transaction by virtue of this or any other written or oral expression by either of them or their Representatives except, in the case of this Agreement, for the matters specifically agreed to herein.
11. Remedies. Each of the parties hereto acknowledges that in the event of any breach of the terms of this Agreement, the other party could not be made whole by monetary damages only. Accordingly, each of the parties hereto, in addition to any other remedy to which it may be entitled in law or in equity, shall be entitled to an injunction (which shall include a temporary restraining order) to prevent breaches of the terms of this Agreement.
12. Communications. Without the Company’s prior written consent, which may be withheld by the Company in its sole discretion, the Receiving Party shall not (and shall cause its Representatives not to) initiate, other than through the Company’s financial and legal advisors or such other persons, as designated by the Company in writing, any (a) communication concerning the Confidential Information, (b) requests for meetings with management of the Company in connection with the possible Transaction or other transaction between the parties or (c) communication relating to the business of the Company or the possible Transaction, in each case, with any officer, director or employee of the Company.
13. Securities Laws. The Receiving Party acknowledges that it is aware and that the Receiving Party and its Representatives have been advised that the United States securities laws prohibit any person having non-public material information about a company from purchasing or selling securities of that company or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities.
14. Entire Agreement; Amendments. This Agreement represents the entire understanding and agreement of the parties hereto with respect to the matters contained herein, and may be amended, modified or waived only by a separate writing executed by the Receiving Party and the Company expressly so amending, modifying or waiving this Agreement. This Agreement shall inure to the benefit of and be binding upon the parties and their respective successors and assigns.
15. No Waiver. No failure or delay by either party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder.
16. Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of New York, without regard to the laws of conflict of laws. Each of the parties hereto: (a) irrevocably and unconditionally consents and submits to the jurisdiction of the state and federal courts located in the State of New York for purposes of any action, suit or proceeding arising out of or relating to this Agreement; (b) agrees that service of any process, summons, notice or document by U.S. registered mail to the address set forth at the end of this Agreement shall be effective service of process for any action, suit or proceeding brought against such party; (c) irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of or relating to this Agreement in any state or federal court located in the State of New York; and (d) irrevocably and unconditionally waives the right to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any action, suit or proceeding arising out of or relating to this Agreement that is brought in any state or federal court located in the State of New York has been brought in an inconvenient forum.
17. Expenses. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines that a party has breached this Agreement, then such party shall be liable and pay to the non-breaching party the legal fees and expenses such non-breaching party has incurred in connection with such litigation, including any appeal therefrom.
18. Captions. The Captions contained in this Agreement are for convenience only and shall not affect the construction or interpretation of any provisions of this Agreement.
19. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same Agreement.
20. Severability. In the event any term of this Agreement is found by any court to be void or otherwise unenforceable, the remainder of this Agreement shall remain valid and enforceable as though such term were absent upon the date of its execution.
21. Notices. All notices and other communications required or permitted hereunder will be in writing and will be deemed to have been duly given when delivered in person or when dispatched by email or electronic facsimile transfer (with such facsimile confirmed in writing by mail simultaneously dispatched) to the Company at the address specified below:
The Talbots, Inc.
Attention: Chief Operating Officer
One Talbots Drive
Hingham, MA 02043
Telephone: 781-741-7600
Facsimile: 781-741-4927
with copies to:
The Talbots, Inc.
Attention: General Counsel
211 South Ridge St.
Rye Brook, NY 10573
Telephone: 914-934-8877
Facsimile: 914-934-9136
and
Dewey & LeBoeuf LLP
Attention: Morton A. Pierce, Esq.
Chang-Do Gong, Esq.
1301 Avenue of the Americas
New York, NY 10019
Telephone: 212-259-8000
Facsimile: 212-259-6333
22. Non-Private Equity Affiliates. Notwithstanding anything to the contrary provided elsewhere herein, none of the provisions of this Agreement shall in any way limit the ordinary course business services and activities of the Receiving Party and its affiliates; provided, that (a) such services and activities are distinct from the private equity business and (b) the Confidential Information is not made available to Representatives of the Receiving Party and its affiliates who are not involved in the private equity business or who are engaged in investments that are not private equity investments and such ordinary course business services and activities are otherwise conducted without any reference to, or use of, the Confidential Information. The Receiving Party further represents to the Company that the Receiving Party has implemented appropriate internal restrictions on the sharing of confidential information (including, without limitation, the implementation of ethical walls around certain affiliates, to comply with federal securities laws of the United States).
23. Termination. Except as otherwise specified herein, the obligations of the parties set forth in this Agreement shall terminate and be of no further force and effect eighteen months from the date hereof.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, THIS AGREEMENT is executed and delivered effective as of the date first written above.
THE TALBOTS, INC.
By /s/ Richard T. O’Connell, Jr.
Name: Richard T. O’Connell, Jr.
Title: Executive Vice President
SYCAMORE PARTNERS MANAGEMENT, L.L.C.
By /s/ Stefan Kaluzny
Name: /s/ Stefan Kaluzny
Title: Managing Director
| Entailment |
538_nda-4 | 538_nda-4_0 | Q: Receiving Party shall not use any Confidential Information for any purpose other than the purposes stated in Agreement.
Text: STRICTLY CONFIDENTIAL
January 27, 2012
Sycamore Partners Management, L.L.C.
9 West 57 Street, 31 Floorthst
New York, New York 10019
Attention: Stefan Kaluzny
Managing Director
Dear Mr. Kaluzny:
CONFIDENTIALITY AGREEMENT
This Confidentiality Agreement (this “Agreement”) is dated as of January 27, 2012 by and between Sycamore Partners Management, L.L.C., a Delaware limited liability company (the “Receiving Party”) and The Talbots, Inc., a Delaware corporation (together with its subsidiaries, the “Company”).
1. Confidential Information; Representatives. (a) The Receiving Party is considering a possible business combination transaction (whether negotiated directly with the Company’s Board of Directors or otherwise) with respect to the Company (the “Transaction”), and, in order to assist the Receiving Party in evaluating the possible Transaction, the Company is prepared to make available to the Receiving Party certain information concerning the business, operations, strategy and prospects of the Company (all such information, the “Confidential Information”). As a condition to the Confidential Information being furnished to the Receiving Party and the directors, officers, principals, partners, members, employees, agents, consultants, related investment funds, advisors, attorneys, accountants, affiliates, potential sources of capital and financing, and financial advisors (collectively, “Representatives”) of the Receiving Party, the Receiving Party agrees to treat the Confidential Information strictly in accordance with the provisions of this Agreement and to otherwise comply, and to cause its Representatives to comply, with all obligations hereinafter set forth.
(b) The term “Confidential Information” shall include, without limitation, any and all information concerning the Company and its business, operations, strategic initiatives, financing, employees, strategies or prospects that is furnished to the Receiving Party or its Representatives by or on behalf of the Company, whether furnished before or after the date of this Agreement, including, without limitation, any written or oral analyses, business or strategic plans, compilations, studies, data, reports, interpretations, projections, forecasts, records, notes, copies, excerpts, memoranda, documents or other materials (in whatever form maintained or conveyed, whether documentary, computerized, verbal form or otherwise), that contain or otherwise reflect Confidential Information concerning the Company or its business, operations, strategic
initiatives, financing, employees, strategies or prospects prepared by or on behalf of the Receiving Party, any of the Receiving Party’s Representatives, the Company or any Company Representatives (as defined below) or that otherwise reflect any conversations with Company Representatives involving or relating to the Confidential Information.
2. Excluded Information. The Confidential Information shall not include information that the Receiving Party can demonstrate (a) is or becomes available to the public other than as a result of acts by the Receiving Party or its Representatives in breach of the terms of this Agreement, (b) was in the Receiving Party’s possession prior to disclosure by the Company, provided that such information, to the Receiving Party’s knowledge, was not subject to another confidentiality agreement with the Company or another party, (c) has been independently developed by the Receiving Party without reference to, or the use of, any Confidential Information or (d) is disclosed to the Receiving Party by a third party, to the Receiving Party’s knowledge, not bound by any duty or obligation of confidentiality on a non-confidential basis.
3. Limitations on Use and Disclosure of Confidential Information. (a) The Receiving Party shall, and shall cause its Representatives to, use the Confidential Information solely for the purpose of evaluating a possible Transaction. The Receiving Party shall, and shall cause its Representatives to, keep the Confidential Information in confidence and shall not disclose any of the Confidential Information in any manner whatsoever; provided, however, that (i) the Receiving Party may make disclosure of information contained in the Confidential Information if required by applicable law, regulation or legal or regulatory process; provided, that the Receiving Party shall have first complied with the terms of Section 9 hereof, (ii) the Receiving Party may make disclosure of information contained in the Confidential Information to the extent that the Company gives its prior written consent, and (iii) any information contained in the Confidential Information may be disclosed to the Receiving Party’s Representatives who reasonably require access to such information for the purpose of evaluating a possible Transaction and who agree to keep such information in confidence to the same extent as described herein; provided, further, that the Receiving Party shall not make any disclosure of any Confidential Information to any potential sources of equity financing without the Company’s prior written consent. The Receiving Party shall be responsible for any breach of the terms of this Agreement by the Receiving Party or by any of its Representatives.
(b) The Receiving Party agrees that, for a period of eighteen months from the date of this Agreement, the Receiving Party shall not (and shall cause its affiliates, subject to Section 22 hereof, not to), directly or indirectly, (i) use the Confidential Information to divert or attempt to divert any business or customer of the Company or (ii) employ or solicit, or initiate contact for employment with, any (A) director, officer or other senior or key employee of the Company or (B) any other employee of the Company whom the Receiving Party meets during its evaluation of the possible Transaction or about whom the Receiving Party receives Confidential Information; provided, however, a general advertisement or other recruiting efforts not specifically targeting any such employees of the Company shall not be considered a solicitation or unauthorized hiring.
(c) If the Receiving Party discovers any unauthorized disclosure or use of any Confidential Information by it or its Representatives, the Receiving Party hereby covenants to promptly notify the Company in writing of any such unauthorized disclosure or use.
4. Non-Disclosure of Existence of Negotiations. Without the prior written consent of the Company or except as may be required by applicable law or regulation, the Receiving Party and its Representatives shall not disclose to any person that any discussions or negotiations are taking place between the parties concerning a possible Transaction, including the content, timing and status of such discussions or negotiations (the “Discussion Information”).
5. No Representations by the Company. The Company will have the exclusive authority to decide what Confidential Information (if any) is to be made available to the Receiving Party and its Representatives. Neither the Company nor any of its directors, officers, employees, agents, consultants, advisors, attorneys, accountants and affiliates (collectively, the “Company Representatives”) will be under any obligation to make any particular Confidential Information available to the Receiving Party or any of the Receiving Party’s Representatives or to supplement or update any Confidential Information previously furnished. Neither the Company nor any of the Company Representatives has made or is making any representation or warranty, express or implied, as to the accuracy or completeness of any Confidential Information, and neither the Company nor any of the Company Representatives will have any liability to the Receiving Party or to any of the Receiving Party’s Representatives relating to or resulting from the use of any Confidential Information or any inaccuracies or errors therein or omissions therefrom. Only those representations and warranties (if any) that are included in any final definitive written agreement that provides for the consummation of a negotiated transaction between the Receiving Party and the Company and is validly executed on behalf of the Receiving Party and the Company will have legal effect.
6. Standstill Agreement. In consideration of the Confidential Information being furnished to the Receiving Party pursuant to this Agreement, the Receiving Party agrees that, for a period of one year from the date of this Agreement (or, such shorter period agreed to by the Company with a third party who is provided access to the Confidential Information for the purpose of evaluating a possible Transaction, the “Standstill Period”), unless expressly requested by the Company or its Board of Directors (or any committee thereof) in writing, the Receiving Party shall not (and shall cause its affiliates not to and shall cause its and their respective Representatives acting at its and their respective behalf not to): (a) in any manner acting alone or in concert with others, acquire, agree to acquire or make any proposal to acquire, directly or indirectly, by means of purchase, merger, business combination or in any other manner, beneficial ownership of any securities of the Company, direct or indirect rights to acquire any securities of the Company (including any derivative securities with economic equivalents of ownership of any of such securities), any right to vote or to direct the voting of any securities of the Company or any assets of the Company, (b) make, or in any way participate in, directly or indirectly, any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote, or seek to advise or influence any person with respect to the voting of, any voting securities of the Company, (c) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) with respect to any voting securities of the Company, other than any group comprised solely of the Receiving Party and its affiliates, (d) otherwise act, alone or in concert with others, to seek to control, advise, change or influence the management, board of directors, governing instruments, policies or affairs of the Company, (e) make any public disclosure, or take any action that could require the Company to make any public disclosure, with respect to any of the matters set forth in this Agreement, other than the required amendment to the Receiving Party’s Schedule 13D filing as a result of the execution and delivery of this Agreement, (f) disclose any intention, plan or arrangement inconsistent with the foregoing or (g) have any discussions or enter into any arrangements (whether written or oral) with, or advise, assist or encourage any other persons in connection with any of the foregoing. The Receiving Party also agrees during such period not to request the Company or any of the Company Representatives, directly or indirectly, to amend or waive any provision of this Section 6 (including this sentence). Notwithstanding any provision in this Agreement to the contrary, (i) the Standstill Period shall terminate immediately if, after the date of this Agreement, (A) the Company enters into a definitive agreement with a third party to effectuate a sale of 50% or more of the consolidated assets of the Company or 50% or more of the Company’s outstanding equity securities, (B) the Company publicly announces the conclusion of its previously announced strategic review process without a definitive agreement to sell the Company, (C) the Company makes an assignment for the benefit of creditors or commences any proceeding under any bankruptcy reorganization, insolvency, dissolution or liquidation law of any jurisdiction or (D) any bankruptcy petition is filed or any such proceeding is commenced against the Company and either (1) the Company indicates its approval thereof, consent thereto or acquiescence therein, or (2) such petition application or proceeding is not dismissed within 30 days and (ii) the Standstill Period solely with respect to clause (b) of this Section 6 shall terminate ten days prior to the expiration of the applicable time period for stockholders to nominate directors for election at the Company’s 2012 annual stockholders meeting to be scheduled in accordance with Section 8 hereof (and, for the avoidance of doubt, the restrictions in clauses (c), (d), (e), (f) and (g) of this Section 6 shall not apply to the activities that were previously expressly prohibited by clause (b) of this Section 6 in the event the restrictions in clause (b) are terminated pursuant to this clause (ii)).
7. Return of Confidential Information. Promptly upon the written request of the Company, the Receiving Party will return all copies of the Confidential Information to the Company, and all notes, studies, reports, memoranda and other documents or materials prepared by the Receiving Party or its Representatives that contain or reflect any Confidential Information shall be destroyed. Notwithstanding the return to the Company or destruction of Confidential Information pursuant to this Section 7, the Receiving Party and its Representatives will continue to be bound by their confidentiality obligations and other obligations under this Agreement for the term hereof. Notwithstanding the foregoing, (a) the Receiving Party’s legal department and/or outside counsel may keep one copy of the Confidential Information (in electronic or paper form) and, with respect to the Receiving Party’s Representatives who are accounting firms, such firms may keep one copy of the Confidential Information, in each case, if required to comply with applicable law or regulation and (b) the Receiving Party and its Representatives may retain Confidential Information to the extent it is “backed-up” on its or their (as the case may be) electronic information management and communications systems or servers, is not available to an end user and cannot be expunged without considerable effort; provided, that any such information so retained pursuant to clauses (a) and (b) of this Section 7 shall be held in compliance with the terms of this Agreement for a period of eighteen months from the date hereof.
8. 2012 Annual Stockholders Meeting. The Company agrees (a) that the meeting date for its 2012 annual stockholders meeting (with respect to the Company’s fiscal year ended January 28, 2012) will be held no earlier than thirty-one days after the first anniversary of the Company’s 2011 annual stockholders meeting (with respect to the Company’s fiscal year ended January 29, 2011) and (b) to provide the Receiving Party a copy of the press release announcing the date of its 2012 annual meeting on the date such press release is publicly issued.
9. Subpoena or Court Order. In the event that the Receiving Party or anyone to whom it discloses the Confidential Information receives a request to disclose all or any part of the Confidential Information or Discussion Information under the terms of a subpoena or other order issued by a court of competent jurisdiction or by another governmental agency, the Receiving Party shall if permitted pursuant to applicable law (a) promptly notify the Company of the existence, terms and circumstances surrounding such a request, (b) consult with the Company on the advisability of taking steps to resist or narrow such request, (c) if disclosure of such Confidential Information or Discussion Information is required, furnish only such portion of the Confidential Information or Discussion Information as the Receiving Party is advised by its legal counsel is legally required to be disclosed and (d) if requested by the Company, cooperate with the Company in its efforts to obtain a protective order or other relief to prevent the disclosure of the Confidential Information or Discussion Information or other reliable assurance that confidential treatment will be accorded to such portion of the Confidential Information or Discussion Information, as applicable, that is required to be disclosed.
10. Definitive Agreement. Unless and until a definitive written agreement between the Receiving Party and the Company with respect to a Transaction has been executed and delivered, neither the Receiving Party nor the Company will be under
any legal obligation of any kind whatsoever with respect to such a Transaction by virtue of this or any other written or oral expression by either of them or their Representatives except, in the case of this Agreement, for the matters specifically agreed to herein.
11. Remedies. Each of the parties hereto acknowledges that in the event of any breach of the terms of this Agreement, the other party could not be made whole by monetary damages only. Accordingly, each of the parties hereto, in addition to any other remedy to which it may be entitled in law or in equity, shall be entitled to an injunction (which shall include a temporary restraining order) to prevent breaches of the terms of this Agreement.
12. Communications. Without the Company’s prior written consent, which may be withheld by the Company in its sole discretion, the Receiving Party shall not (and shall cause its Representatives not to) initiate, other than through the Company’s financial and legal advisors or such other persons, as designated by the Company in writing, any (a) communication concerning the Confidential Information, (b) requests for meetings with management of the Company in connection with the possible Transaction or other transaction between the parties or (c) communication relating to the business of the Company or the possible Transaction, in each case, with any officer, director or employee of the Company.
13. Securities Laws. The Receiving Party acknowledges that it is aware and that the Receiving Party and its Representatives have been advised that the United States securities laws prohibit any person having non-public material information about a company from purchasing or selling securities of that company or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities.
14. Entire Agreement; Amendments. This Agreement represents the entire understanding and agreement of the parties hereto with respect to the matters contained herein, and may be amended, modified or waived only by a separate writing executed by the Receiving Party and the Company expressly so amending, modifying or waiving this Agreement. This Agreement shall inure to the benefit of and be binding upon the parties and their respective successors and assigns.
15. No Waiver. No failure or delay by either party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder.
16. Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of New York, without regard to the laws of conflict of laws. Each of the parties hereto: (a) irrevocably and unconditionally consents and submits to the jurisdiction of the state and federal courts located in the State of New York for purposes of any action, suit or proceeding arising out of or relating to this Agreement; (b) agrees that service of any process, summons, notice or document by U.S. registered mail to the address set forth at the end of this Agreement shall be effective service of process for any action, suit or proceeding brought against such party; (c) irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of or relating to this Agreement in any state or federal court located in the State of New York; and (d) irrevocably and unconditionally waives the right to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any action, suit or proceeding arising out of or relating to this Agreement that is brought in any state or federal court located in the State of New York has been brought in an inconvenient forum.
17. Expenses. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines that a party has breached this Agreement, then such party shall be liable and pay to the non-breaching party the legal fees and expenses such non-breaching party has incurred in connection with such litigation, including any appeal therefrom.
18. Captions. The Captions contained in this Agreement are for convenience only and shall not affect the construction or interpretation of any provisions of this Agreement.
19. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same Agreement.
20. Severability. In the event any term of this Agreement is found by any court to be void or otherwise unenforceable, the remainder of this Agreement shall remain valid and enforceable as though such term were absent upon the date of its execution.
21. Notices. All notices and other communications required or permitted hereunder will be in writing and will be deemed to have been duly given when delivered in person or when dispatched by email or electronic facsimile transfer (with such facsimile confirmed in writing by mail simultaneously dispatched) to the Company at the address specified below:
The Talbots, Inc.
Attention: Chief Operating Officer
One Talbots Drive
Hingham, MA 02043
Telephone: 781-741-7600
Facsimile: 781-741-4927
with copies to:
The Talbots, Inc.
Attention: General Counsel
211 South Ridge St.
Rye Brook, NY 10573
Telephone: 914-934-8877
Facsimile: 914-934-9136
and
Dewey & LeBoeuf LLP
Attention: Morton A. Pierce, Esq.
Chang-Do Gong, Esq.
1301 Avenue of the Americas
New York, NY 10019
Telephone: 212-259-8000
Facsimile: 212-259-6333
22. Non-Private Equity Affiliates. Notwithstanding anything to the contrary provided elsewhere herein, none of the provisions of this Agreement shall in any way limit the ordinary course business services and activities of the Receiving Party and its affiliates; provided, that (a) such services and activities are distinct from the private equity business and (b) the Confidential Information is not made available to Representatives of the Receiving Party and its affiliates who are not involved in the private equity business or who are engaged in investments that are not private equity investments and such ordinary course business services and activities are otherwise conducted without any reference to, or use of, the Confidential Information. The Receiving Party further represents to the Company that the Receiving Party has implemented appropriate internal restrictions on the sharing of confidential information (including, without limitation, the implementation of ethical walls around certain affiliates, to comply with federal securities laws of the United States).
23. Termination. Except as otherwise specified herein, the obligations of the parties set forth in this Agreement shall terminate and be of no further force and effect eighteen months from the date hereof.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, THIS AGREEMENT is executed and delivered effective as of the date first written above.
THE TALBOTS, INC.
By /s/ Richard T. O’Connell, Jr.
Name: Richard T. O’Connell, Jr.
Title: Executive Vice President
SYCAMORE PARTNERS MANAGEMENT, L.L.C.
By /s/ Stefan Kaluzny
Name: /s/ Stefan Kaluzny
Title: Managing Director
| Entailment |
541_nda-11 | 541_nda-11_0 | Q: Receiving Party shall not reverse engineer any objects which embody Disclosing Party's Confidential Information.
Text: MUTUAL NON-DISCLOSURE AGREEMENT
THIS MUTUAL NON-DISCLOSURE AGREEMENT (the “Agreement”), effective April 3, 2008 (the “Effective Date”), is between Magic Hat Brewing Company & Performing Arts Center, Inc., a Vermont corporation (“Company”), and PYRAMID BREWERIES INC., a Washington corporation (“Pyramid”). Pyramid and the Company are sometimes referred to in this Agreement individually as a “Party” and collectively as the “Parties”.
WHEREAS, Pyramid is a reporting company with the Securities and Exchange Commission and files reports and proxy materials under the Securities Exchange Act of 1934, which are publicly available.
WHEREAS, the Parties wish to exchange certain nonpublic confidential business information for purposes of engaging in preliminary discussions regarding and evaluating a possible strategic merger, acquisition or business combination between the Parties (the “Business Purpose”).
NOW THEREFORE, the Parties agree as follows:
1. Definition of Confidential Information. The term “Confidential Information” means any and all information that is or has been received by either Party (the “Recipient”) from the other Party (the “Disclosing Party”), or which the Recipient has had access to, during the four (4)-month period commencing on the Effective Date (the “Term”), and that is either (a) marked as “confidential,” “proprietary,” or such similar term, or (b) non-public information related to the Disclosing Party’s business, which the Receiving Party should reasonably know is confidential based on the nature of such information. Without limiting the generality of the foregoing, Confidential Information shall include the following, whether in tangible or electronic form: business plans, customer database information, employee and independent contractor lists, internal reports and investigations, research and work in progress, source and object code, technical manuals, financial statements and projections, cost summaries and pricing formulae, algorithms, confidential filings with any international, federal or state agency, and all other information concerning methods of doing business, ideas and inventions (whether or not patentable), and data that derives independent economic value, actual or potential, from not being generally known to persons who can obtain economic value from its disclosure or use that is the subject of reasonable efforts by the Company to maintain its secrecy.
2. Excluded Information. Confidential Information shall not include any information that: (a) prior to its disclosure by the Disclosing Party is already lawfully and rightfully known by or available to the Recipient as evidenced by prior written records;
(b) through no wrongful act, fault or negligence on the part of the Recipient is or hereafter becomes part of the public domain; (c) is lawfully received by the Recipient from a third party without restriction and without breach of this agreement or any other agreement; (d) is approved for public release or use by written authorization of the Disclosing Party; (e) the Recipient can demonstrate was independently developed by it without reference to the Disclosing Party’s Confidential Information; or (f) is disclosed pursuant to the requirement or request of a governmental agency or court of competent jurisdiction to the extent such disclosure is required by a valid law, regulation or court order and sufficient notice is given by the Recipient to the Disclosing Party of any such requirement or request in order to permit the Disclosing Party to seek an appropriate protective order or exemption from such requirement or request.
3. Non-Disclosure and Confidentiality. The Recipient shall not (a) use the Confidential Information except for the Business Purpose, or (b) disclose or make the Confidential Information available to any person or entity (other than Related Parties, as defined below) without the prior written consent of the Disclosing Party. Each Party shall take reasonable security precautions to protect the Confidential Information, at least as strict as the precautions it takes to protect its own confidential and proprietary information of a similar nature. Without the prior written consent of the Disclosing Party, the Recipient of Confidential Information shall restrict the disclosure and availability of Confidential Information to Recipient’s financial, tax, or legal advisors, or to its directors, officers, or employees with a demonstrable need to know such Confidential Information (each, a “Related Party”, and, collectively, the “Related Parties”), provided that any such Related Party either agrees to be bound by this Agreement or is already bound by confidentiality obligations no less restrictive than those in this Agreement. Each Party shall be responsible for the breach of this Agreement by any Related Party. Neither Party shall use any Confidential Information received by it to develop a product or service which competes with or imitates products of the Disclosing Party or engage in reverse engineering to develop similar products or services using the Confidential Information (it being acknowledged and understood that both Parties are engaged in the business of beer brewing and that competing beer products are regularly independently developed within the beer industry using the same or similar raw materials, processes and packaging). The Recipient shall prevent commingling of the Confidential Information with similar information or material of other third parties. The obligations of confidentiality and protection under this Agreement shall survive for three (3) years following the expiration of the Term.
4. Non-Solicitation. Other than through general employment listings and advertising or through the efforts of employment search firms, each Party shall not, during the Term of this Agreement and for one (1) year thereafter, directly or indirectly, solicit or hire any employee or independent contractor of the other Party, or induce any such person to abandon their relationship with the other Party.
5. No Warranty. THE CONFIDENTIAL INFORMATION IS PROVIDED “AS IS,” AND THE DISCLOSING PARTY HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES REGARDING THE ACCURACY, SUFFICIENCY, SUITABILITY OR NON-INFRINGEMENT OF SUCH CONFIDENTIAL INFORMATION.
6. No License or Obligations; Return of Confidential Information. This Agreement does not represent nor imply any agreement or commitment to enter into any further business relationship. This Agreement does not create any agency or partnership relationship between the Parties or authorize a Party to use the other Party’s name or trademarks. As between the Parties, all Confidential Information received by a Recipient shall remain the sole and exclusive property of the Disclosing Party. Upon written request by the Disclosing Party, the Recipient shall return to the Disclosing Party, or shall destroy in a manner satisfactory to the Disclosing Party, all tangible or electronic forms of Confidential Information, including any and all copies of the Confidential Information or notes containing the Confidential Information, and shall provide a written certification to the Disclosing Party that all tangible forms of the Confidential Information have been returned or destroyed.
7. Remedies for Breach. The Parties agree that money damages would be inadequate to remedy any breach of this Agreement. As a result, a non-breaching party shall be entitled to seek, and a court of competent jurisdiction may grant, specific performance and injunctive or other equitable relief as a remedy for any breach of this Agreement. Such remedy shall be in addition to all other remedies, including money damages, available to a non-breaching party at law or in equity.
8. Notices. Any notice given by one Party to the other under this Agreement shall be sent by registered mail, return receipt requested, or reputable overnight courier to the addresses listed below (or such address changed by the giving of like notice to the other Party), and shall be deemed received upon actual receipt by the recipient Party.
9. Governing Law; Attorneys’ Fees. This Agreement, including all matters of construction, validity and performance, shall be governed by, construed and enforced in accordance with the laws of the State of Washington, as applied to contracts made and to be fully performed in such state, without regard to its conflict of law rules. The Parties consent to the jurisdiction of the state and federal courts located in New York, New York. A prevailing Party shall be entitled to an award of its reasonable attorneys’ fees and costs arising out of this Agreement.
10. Miscellaneous. This Agreement sets forth the entire agreement between the Parties hereto with respect to its subject matter, and any and all prior agreements, understandings or representations with respect to its subject matter are merged herein. This Agreement may be amended and any provision may be waived only by the written agreement of the Parties. The terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective successors and assigns of the Parties, provided that Confidential Information of the Disclosing Party may not be assigned by the Recipient without the prior written consent of the Disclosing Party. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be effected, impaired or invalidated thereby. This Agreement may be executed in two or more counterparts or by other electronic means, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above.
PYRAMID BREWERIES INC., MAGIC HAT BREWING COMPANY & PERFORMING
ARTS CENTER, INC.,
a Washington corporation a Vermont corporation
By (signature): By (signature):
Printed Name: Printed Name:
Title: Title:
Address: 91 South Royal Brougham Way Address: 5 Bartlett Road
Seattle, WA 98134 South Burlington, VT 05403
Fax: Fax: (802) 658-5788
| Entailment |
541_nda-16 | 541_nda-16_0 | Q: Receiving Party shall destroy or return some Confidential Information upon the termination of Agreement.
Text: MUTUAL NON-DISCLOSURE AGREEMENT
THIS MUTUAL NON-DISCLOSURE AGREEMENT (the “Agreement”), effective April 3, 2008 (the “Effective Date”), is between Magic Hat Brewing Company & Performing Arts Center, Inc., a Vermont corporation (“Company”), and PYRAMID BREWERIES INC., a Washington corporation (“Pyramid”). Pyramid and the Company are sometimes referred to in this Agreement individually as a “Party” and collectively as the “Parties”.
WHEREAS, Pyramid is a reporting company with the Securities and Exchange Commission and files reports and proxy materials under the Securities Exchange Act of 1934, which are publicly available.
WHEREAS, the Parties wish to exchange certain nonpublic confidential business information for purposes of engaging in preliminary discussions regarding and evaluating a possible strategic merger, acquisition or business combination between the Parties (the “Business Purpose”).
NOW THEREFORE, the Parties agree as follows:
1. Definition of Confidential Information. The term “Confidential Information” means any and all information that is or has been received by either Party (the “Recipient”) from the other Party (the “Disclosing Party”), or which the Recipient has had access to, during the four (4)-month period commencing on the Effective Date (the “Term”), and that is either (a) marked as “confidential,” “proprietary,” or such similar term, or (b) non-public information related to the Disclosing Party’s business, which the Receiving Party should reasonably know is confidential based on the nature of such information. Without limiting the generality of the foregoing, Confidential Information shall include the following, whether in tangible or electronic form: business plans, customer database information, employee and independent contractor lists, internal reports and investigations, research and work in progress, source and object code, technical manuals, financial statements and projections, cost summaries and pricing formulae, algorithms, confidential filings with any international, federal or state agency, and all other information concerning methods of doing business, ideas and inventions (whether or not patentable), and data that derives independent economic value, actual or potential, from not being generally known to persons who can obtain economic value from its disclosure or use that is the subject of reasonable efforts by the Company to maintain its secrecy.
2. Excluded Information. Confidential Information shall not include any information that: (a) prior to its disclosure by the Disclosing Party is already lawfully and rightfully known by or available to the Recipient as evidenced by prior written records;
(b) through no wrongful act, fault or negligence on the part of the Recipient is or hereafter becomes part of the public domain; (c) is lawfully received by the Recipient from a third party without restriction and without breach of this agreement or any other agreement; (d) is approved for public release or use by written authorization of the Disclosing Party; (e) the Recipient can demonstrate was independently developed by it without reference to the Disclosing Party’s Confidential Information; or (f) is disclosed pursuant to the requirement or request of a governmental agency or court of competent jurisdiction to the extent such disclosure is required by a valid law, regulation or court order and sufficient notice is given by the Recipient to the Disclosing Party of any such requirement or request in order to permit the Disclosing Party to seek an appropriate protective order or exemption from such requirement or request.
3. Non-Disclosure and Confidentiality. The Recipient shall not (a) use the Confidential Information except for the Business Purpose, or (b) disclose or make the Confidential Information available to any person or entity (other than Related Parties, as defined below) without the prior written consent of the Disclosing Party. Each Party shall take reasonable security precautions to protect the Confidential Information, at least as strict as the precautions it takes to protect its own confidential and proprietary information of a similar nature. Without the prior written consent of the Disclosing Party, the Recipient of Confidential Information shall restrict the disclosure and availability of Confidential Information to Recipient’s financial, tax, or legal advisors, or to its directors, officers, or employees with a demonstrable need to know such Confidential Information (each, a “Related Party”, and, collectively, the “Related Parties”), provided that any such Related Party either agrees to be bound by this Agreement or is already bound by confidentiality obligations no less restrictive than those in this Agreement. Each Party shall be responsible for the breach of this Agreement by any Related Party. Neither Party shall use any Confidential Information received by it to develop a product or service which competes with or imitates products of the Disclosing Party or engage in reverse engineering to develop similar products or services using the Confidential Information (it being acknowledged and understood that both Parties are engaged in the business of beer brewing and that competing beer products are regularly independently developed within the beer industry using the same or similar raw materials, processes and packaging). The Recipient shall prevent commingling of the Confidential Information with similar information or material of other third parties. The obligations of confidentiality and protection under this Agreement shall survive for three (3) years following the expiration of the Term.
4. Non-Solicitation. Other than through general employment listings and advertising or through the efforts of employment search firms, each Party shall not, during the Term of this Agreement and for one (1) year thereafter, directly or indirectly, solicit or hire any employee or independent contractor of the other Party, or induce any such person to abandon their relationship with the other Party.
5. No Warranty. THE CONFIDENTIAL INFORMATION IS PROVIDED “AS IS,” AND THE DISCLOSING PARTY HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES REGARDING THE ACCURACY, SUFFICIENCY, SUITABILITY OR NON-INFRINGEMENT OF SUCH CONFIDENTIAL INFORMATION.
6. No License or Obligations; Return of Confidential Information. This Agreement does not represent nor imply any agreement or commitment to enter into any further business relationship. This Agreement does not create any agency or partnership relationship between the Parties or authorize a Party to use the other Party’s name or trademarks. As between the Parties, all Confidential Information received by a Recipient shall remain the sole and exclusive property of the Disclosing Party. Upon written request by the Disclosing Party, the Recipient shall return to the Disclosing Party, or shall destroy in a manner satisfactory to the Disclosing Party, all tangible or electronic forms of Confidential Information, including any and all copies of the Confidential Information or notes containing the Confidential Information, and shall provide a written certification to the Disclosing Party that all tangible forms of the Confidential Information have been returned or destroyed.
7. Remedies for Breach. The Parties agree that money damages would be inadequate to remedy any breach of this Agreement. As a result, a non-breaching party shall be entitled to seek, and a court of competent jurisdiction may grant, specific performance and injunctive or other equitable relief as a remedy for any breach of this Agreement. Such remedy shall be in addition to all other remedies, including money damages, available to a non-breaching party at law or in equity.
8. Notices. Any notice given by one Party to the other under this Agreement shall be sent by registered mail, return receipt requested, or reputable overnight courier to the addresses listed below (or such address changed by the giving of like notice to the other Party), and shall be deemed received upon actual receipt by the recipient Party.
9. Governing Law; Attorneys’ Fees. This Agreement, including all matters of construction, validity and performance, shall be governed by, construed and enforced in accordance with the laws of the State of Washington, as applied to contracts made and to be fully performed in such state, without regard to its conflict of law rules. The Parties consent to the jurisdiction of the state and federal courts located in New York, New York. A prevailing Party shall be entitled to an award of its reasonable attorneys’ fees and costs arising out of this Agreement.
10. Miscellaneous. This Agreement sets forth the entire agreement between the Parties hereto with respect to its subject matter, and any and all prior agreements, understandings or representations with respect to its subject matter are merged herein. This Agreement may be amended and any provision may be waived only by the written agreement of the Parties. The terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective successors and assigns of the Parties, provided that Confidential Information of the Disclosing Party may not be assigned by the Recipient without the prior written consent of the Disclosing Party. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be effected, impaired or invalidated thereby. This Agreement may be executed in two or more counterparts or by other electronic means, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above.
PYRAMID BREWERIES INC., MAGIC HAT BREWING COMPANY & PERFORMING
ARTS CENTER, INC.,
a Washington corporation a Vermont corporation
By (signature): By (signature):
Printed Name: Printed Name:
Title: Title:
Address: 91 South Royal Brougham Way Address: 5 Bartlett Road
Seattle, WA 98134 South Burlington, VT 05403
Fax: Fax: (802) 658-5788
| Not mentioned |
541_nda-15 | 541_nda-15_0 | Q: Agreement shall not grant Receiving Party any right to Confidential Information.
Text: MUTUAL NON-DISCLOSURE AGREEMENT
THIS MUTUAL NON-DISCLOSURE AGREEMENT (the “Agreement”), effective April 3, 2008 (the “Effective Date”), is between Magic Hat Brewing Company & Performing Arts Center, Inc., a Vermont corporation (“Company”), and PYRAMID BREWERIES INC., a Washington corporation (“Pyramid”). Pyramid and the Company are sometimes referred to in this Agreement individually as a “Party” and collectively as the “Parties”.
WHEREAS, Pyramid is a reporting company with the Securities and Exchange Commission and files reports and proxy materials under the Securities Exchange Act of 1934, which are publicly available.
WHEREAS, the Parties wish to exchange certain nonpublic confidential business information for purposes of engaging in preliminary discussions regarding and evaluating a possible strategic merger, acquisition or business combination between the Parties (the “Business Purpose”).
NOW THEREFORE, the Parties agree as follows:
1. Definition of Confidential Information. The term “Confidential Information” means any and all information that is or has been received by either Party (the “Recipient”) from the other Party (the “Disclosing Party”), or which the Recipient has had access to, during the four (4)-month period commencing on the Effective Date (the “Term”), and that is either (a) marked as “confidential,” “proprietary,” or such similar term, or (b) non-public information related to the Disclosing Party’s business, which the Receiving Party should reasonably know is confidential based on the nature of such information. Without limiting the generality of the foregoing, Confidential Information shall include the following, whether in tangible or electronic form: business plans, customer database information, employee and independent contractor lists, internal reports and investigations, research and work in progress, source and object code, technical manuals, financial statements and projections, cost summaries and pricing formulae, algorithms, confidential filings with any international, federal or state agency, and all other information concerning methods of doing business, ideas and inventions (whether or not patentable), and data that derives independent economic value, actual or potential, from not being generally known to persons who can obtain economic value from its disclosure or use that is the subject of reasonable efforts by the Company to maintain its secrecy.
2. Excluded Information. Confidential Information shall not include any information that: (a) prior to its disclosure by the Disclosing Party is already lawfully and rightfully known by or available to the Recipient as evidenced by prior written records;
(b) through no wrongful act, fault or negligence on the part of the Recipient is or hereafter becomes part of the public domain; (c) is lawfully received by the Recipient from a third party without restriction and without breach of this agreement or any other agreement; (d) is approved for public release or use by written authorization of the Disclosing Party; (e) the Recipient can demonstrate was independently developed by it without reference to the Disclosing Party’s Confidential Information; or (f) is disclosed pursuant to the requirement or request of a governmental agency or court of competent jurisdiction to the extent such disclosure is required by a valid law, regulation or court order and sufficient notice is given by the Recipient to the Disclosing Party of any such requirement or request in order to permit the Disclosing Party to seek an appropriate protective order or exemption from such requirement or request.
3. Non-Disclosure and Confidentiality. The Recipient shall not (a) use the Confidential Information except for the Business Purpose, or (b) disclose or make the Confidential Information available to any person or entity (other than Related Parties, as defined below) without the prior written consent of the Disclosing Party. Each Party shall take reasonable security precautions to protect the Confidential Information, at least as strict as the precautions it takes to protect its own confidential and proprietary information of a similar nature. Without the prior written consent of the Disclosing Party, the Recipient of Confidential Information shall restrict the disclosure and availability of Confidential Information to Recipient’s financial, tax, or legal advisors, or to its directors, officers, or employees with a demonstrable need to know such Confidential Information (each, a “Related Party”, and, collectively, the “Related Parties”), provided that any such Related Party either agrees to be bound by this Agreement or is already bound by confidentiality obligations no less restrictive than those in this Agreement. Each Party shall be responsible for the breach of this Agreement by any Related Party. Neither Party shall use any Confidential Information received by it to develop a product or service which competes with or imitates products of the Disclosing Party or engage in reverse engineering to develop similar products or services using the Confidential Information (it being acknowledged and understood that both Parties are engaged in the business of beer brewing and that competing beer products are regularly independently developed within the beer industry using the same or similar raw materials, processes and packaging). The Recipient shall prevent commingling of the Confidential Information with similar information or material of other third parties. The obligations of confidentiality and protection under this Agreement shall survive for three (3) years following the expiration of the Term.
4. Non-Solicitation. Other than through general employment listings and advertising or through the efforts of employment search firms, each Party shall not, during the Term of this Agreement and for one (1) year thereafter, directly or indirectly, solicit or hire any employee or independent contractor of the other Party, or induce any such person to abandon their relationship with the other Party.
5. No Warranty. THE CONFIDENTIAL INFORMATION IS PROVIDED “AS IS,” AND THE DISCLOSING PARTY HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES REGARDING THE ACCURACY, SUFFICIENCY, SUITABILITY OR NON-INFRINGEMENT OF SUCH CONFIDENTIAL INFORMATION.
6. No License or Obligations; Return of Confidential Information. This Agreement does not represent nor imply any agreement or commitment to enter into any further business relationship. This Agreement does not create any agency or partnership relationship between the Parties or authorize a Party to use the other Party’s name or trademarks. As between the Parties, all Confidential Information received by a Recipient shall remain the sole and exclusive property of the Disclosing Party. Upon written request by the Disclosing Party, the Recipient shall return to the Disclosing Party, or shall destroy in a manner satisfactory to the Disclosing Party, all tangible or electronic forms of Confidential Information, including any and all copies of the Confidential Information or notes containing the Confidential Information, and shall provide a written certification to the Disclosing Party that all tangible forms of the Confidential Information have been returned or destroyed.
7. Remedies for Breach. The Parties agree that money damages would be inadequate to remedy any breach of this Agreement. As a result, a non-breaching party shall be entitled to seek, and a court of competent jurisdiction may grant, specific performance and injunctive or other equitable relief as a remedy for any breach of this Agreement. Such remedy shall be in addition to all other remedies, including money damages, available to a non-breaching party at law or in equity.
8. Notices. Any notice given by one Party to the other under this Agreement shall be sent by registered mail, return receipt requested, or reputable overnight courier to the addresses listed below (or such address changed by the giving of like notice to the other Party), and shall be deemed received upon actual receipt by the recipient Party.
9. Governing Law; Attorneys’ Fees. This Agreement, including all matters of construction, validity and performance, shall be governed by, construed and enforced in accordance with the laws of the State of Washington, as applied to contracts made and to be fully performed in such state, without regard to its conflict of law rules. The Parties consent to the jurisdiction of the state and federal courts located in New York, New York. A prevailing Party shall be entitled to an award of its reasonable attorneys’ fees and costs arising out of this Agreement.
10. Miscellaneous. This Agreement sets forth the entire agreement between the Parties hereto with respect to its subject matter, and any and all prior agreements, understandings or representations with respect to its subject matter are merged herein. This Agreement may be amended and any provision may be waived only by the written agreement of the Parties. The terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective successors and assigns of the Parties, provided that Confidential Information of the Disclosing Party may not be assigned by the Recipient without the prior written consent of the Disclosing Party. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be effected, impaired or invalidated thereby. This Agreement may be executed in two or more counterparts or by other electronic means, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above.
PYRAMID BREWERIES INC., MAGIC HAT BREWING COMPANY & PERFORMING
ARTS CENTER, INC.,
a Washington corporation a Vermont corporation
By (signature): By (signature):
Printed Name: Printed Name:
Title: Title:
Address: 91 South Royal Brougham Way Address: 5 Bartlett Road
Seattle, WA 98134 South Burlington, VT 05403
Fax: Fax: (802) 658-5788
| Entailment |
541_nda-10 | 541_nda-10_0 | Q: Receiving Party shall not disclose the fact that Agreement was agreed or negotiated.
Text: MUTUAL NON-DISCLOSURE AGREEMENT
THIS MUTUAL NON-DISCLOSURE AGREEMENT (the “Agreement”), effective April 3, 2008 (the “Effective Date”), is between Magic Hat Brewing Company & Performing Arts Center, Inc., a Vermont corporation (“Company”), and PYRAMID BREWERIES INC., a Washington corporation (“Pyramid”). Pyramid and the Company are sometimes referred to in this Agreement individually as a “Party” and collectively as the “Parties”.
WHEREAS, Pyramid is a reporting company with the Securities and Exchange Commission and files reports and proxy materials under the Securities Exchange Act of 1934, which are publicly available.
WHEREAS, the Parties wish to exchange certain nonpublic confidential business information for purposes of engaging in preliminary discussions regarding and evaluating a possible strategic merger, acquisition or business combination between the Parties (the “Business Purpose”).
NOW THEREFORE, the Parties agree as follows:
1. Definition of Confidential Information. The term “Confidential Information” means any and all information that is or has been received by either Party (the “Recipient”) from the other Party (the “Disclosing Party”), or which the Recipient has had access to, during the four (4)-month period commencing on the Effective Date (the “Term”), and that is either (a) marked as “confidential,” “proprietary,” or such similar term, or (b) non-public information related to the Disclosing Party’s business, which the Receiving Party should reasonably know is confidential based on the nature of such information. Without limiting the generality of the foregoing, Confidential Information shall include the following, whether in tangible or electronic form: business plans, customer database information, employee and independent contractor lists, internal reports and investigations, research and work in progress, source and object code, technical manuals, financial statements and projections, cost summaries and pricing formulae, algorithms, confidential filings with any international, federal or state agency, and all other information concerning methods of doing business, ideas and inventions (whether or not patentable), and data that derives independent economic value, actual or potential, from not being generally known to persons who can obtain economic value from its disclosure or use that is the subject of reasonable efforts by the Company to maintain its secrecy.
2. Excluded Information. Confidential Information shall not include any information that: (a) prior to its disclosure by the Disclosing Party is already lawfully and rightfully known by or available to the Recipient as evidenced by prior written records;
(b) through no wrongful act, fault or negligence on the part of the Recipient is or hereafter becomes part of the public domain; (c) is lawfully received by the Recipient from a third party without restriction and without breach of this agreement or any other agreement; (d) is approved for public release or use by written authorization of the Disclosing Party; (e) the Recipient can demonstrate was independently developed by it without reference to the Disclosing Party’s Confidential Information; or (f) is disclosed pursuant to the requirement or request of a governmental agency or court of competent jurisdiction to the extent such disclosure is required by a valid law, regulation or court order and sufficient notice is given by the Recipient to the Disclosing Party of any such requirement or request in order to permit the Disclosing Party to seek an appropriate protective order or exemption from such requirement or request.
3. Non-Disclosure and Confidentiality. The Recipient shall not (a) use the Confidential Information except for the Business Purpose, or (b) disclose or make the Confidential Information available to any person or entity (other than Related Parties, as defined below) without the prior written consent of the Disclosing Party. Each Party shall take reasonable security precautions to protect the Confidential Information, at least as strict as the precautions it takes to protect its own confidential and proprietary information of a similar nature. Without the prior written consent of the Disclosing Party, the Recipient of Confidential Information shall restrict the disclosure and availability of Confidential Information to Recipient’s financial, tax, or legal advisors, or to its directors, officers, or employees with a demonstrable need to know such Confidential Information (each, a “Related Party”, and, collectively, the “Related Parties”), provided that any such Related Party either agrees to be bound by this Agreement or is already bound by confidentiality obligations no less restrictive than those in this Agreement. Each Party shall be responsible for the breach of this Agreement by any Related Party. Neither Party shall use any Confidential Information received by it to develop a product or service which competes with or imitates products of the Disclosing Party or engage in reverse engineering to develop similar products or services using the Confidential Information (it being acknowledged and understood that both Parties are engaged in the business of beer brewing and that competing beer products are regularly independently developed within the beer industry using the same or similar raw materials, processes and packaging). The Recipient shall prevent commingling of the Confidential Information with similar information or material of other third parties. The obligations of confidentiality and protection under this Agreement shall survive for three (3) years following the expiration of the Term.
4. Non-Solicitation. Other than through general employment listings and advertising or through the efforts of employment search firms, each Party shall not, during the Term of this Agreement and for one (1) year thereafter, directly or indirectly, solicit or hire any employee or independent contractor of the other Party, or induce any such person to abandon their relationship with the other Party.
5. No Warranty. THE CONFIDENTIAL INFORMATION IS PROVIDED “AS IS,” AND THE DISCLOSING PARTY HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES REGARDING THE ACCURACY, SUFFICIENCY, SUITABILITY OR NON-INFRINGEMENT OF SUCH CONFIDENTIAL INFORMATION.
6. No License or Obligations; Return of Confidential Information. This Agreement does not represent nor imply any agreement or commitment to enter into any further business relationship. This Agreement does not create any agency or partnership relationship between the Parties or authorize a Party to use the other Party’s name or trademarks. As between the Parties, all Confidential Information received by a Recipient shall remain the sole and exclusive property of the Disclosing Party. Upon written request by the Disclosing Party, the Recipient shall return to the Disclosing Party, or shall destroy in a manner satisfactory to the Disclosing Party, all tangible or electronic forms of Confidential Information, including any and all copies of the Confidential Information or notes containing the Confidential Information, and shall provide a written certification to the Disclosing Party that all tangible forms of the Confidential Information have been returned or destroyed.
7. Remedies for Breach. The Parties agree that money damages would be inadequate to remedy any breach of this Agreement. As a result, a non-breaching party shall be entitled to seek, and a court of competent jurisdiction may grant, specific performance and injunctive or other equitable relief as a remedy for any breach of this Agreement. Such remedy shall be in addition to all other remedies, including money damages, available to a non-breaching party at law or in equity.
8. Notices. Any notice given by one Party to the other under this Agreement shall be sent by registered mail, return receipt requested, or reputable overnight courier to the addresses listed below (or such address changed by the giving of like notice to the other Party), and shall be deemed received upon actual receipt by the recipient Party.
9. Governing Law; Attorneys’ Fees. This Agreement, including all matters of construction, validity and performance, shall be governed by, construed and enforced in accordance with the laws of the State of Washington, as applied to contracts made and to be fully performed in such state, without regard to its conflict of law rules. The Parties consent to the jurisdiction of the state and federal courts located in New York, New York. A prevailing Party shall be entitled to an award of its reasonable attorneys’ fees and costs arising out of this Agreement.
10. Miscellaneous. This Agreement sets forth the entire agreement between the Parties hereto with respect to its subject matter, and any and all prior agreements, understandings or representations with respect to its subject matter are merged herein. This Agreement may be amended and any provision may be waived only by the written agreement of the Parties. The terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective successors and assigns of the Parties, provided that Confidential Information of the Disclosing Party may not be assigned by the Recipient without the prior written consent of the Disclosing Party. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be effected, impaired or invalidated thereby. This Agreement may be executed in two or more counterparts or by other electronic means, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above.
PYRAMID BREWERIES INC., MAGIC HAT BREWING COMPANY & PERFORMING
ARTS CENTER, INC.,
a Washington corporation a Vermont corporation
By (signature): By (signature):
Printed Name: Printed Name:
Title: Title:
Address: 91 South Royal Brougham Way Address: 5 Bartlett Road
Seattle, WA 98134 South Burlington, VT 05403
Fax: Fax: (802) 658-5788
| Not mentioned |
541_nda-2 | 541_nda-2_0 | Q: Confidential Information shall only include technical information.
Text: MUTUAL NON-DISCLOSURE AGREEMENT
THIS MUTUAL NON-DISCLOSURE AGREEMENT (the “Agreement”), effective April 3, 2008 (the “Effective Date”), is between Magic Hat Brewing Company & Performing Arts Center, Inc., a Vermont corporation (“Company”), and PYRAMID BREWERIES INC., a Washington corporation (“Pyramid”). Pyramid and the Company are sometimes referred to in this Agreement individually as a “Party” and collectively as the “Parties”.
WHEREAS, Pyramid is a reporting company with the Securities and Exchange Commission and files reports and proxy materials under the Securities Exchange Act of 1934, which are publicly available.
WHEREAS, the Parties wish to exchange certain nonpublic confidential business information for purposes of engaging in preliminary discussions regarding and evaluating a possible strategic merger, acquisition or business combination between the Parties (the “Business Purpose”).
NOW THEREFORE, the Parties agree as follows:
1. Definition of Confidential Information. The term “Confidential Information” means any and all information that is or has been received by either Party (the “Recipient”) from the other Party (the “Disclosing Party”), or which the Recipient has had access to, during the four (4)-month period commencing on the Effective Date (the “Term”), and that is either (a) marked as “confidential,” “proprietary,” or such similar term, or (b) non-public information related to the Disclosing Party’s business, which the Receiving Party should reasonably know is confidential based on the nature of such information. Without limiting the generality of the foregoing, Confidential Information shall include the following, whether in tangible or electronic form: business plans, customer database information, employee and independent contractor lists, internal reports and investigations, research and work in progress, source and object code, technical manuals, financial statements and projections, cost summaries and pricing formulae, algorithms, confidential filings with any international, federal or state agency, and all other information concerning methods of doing business, ideas and inventions (whether or not patentable), and data that derives independent economic value, actual or potential, from not being generally known to persons who can obtain economic value from its disclosure or use that is the subject of reasonable efforts by the Company to maintain its secrecy.
2. Excluded Information. Confidential Information shall not include any information that: (a) prior to its disclosure by the Disclosing Party is already lawfully and rightfully known by or available to the Recipient as evidenced by prior written records;
(b) through no wrongful act, fault or negligence on the part of the Recipient is or hereafter becomes part of the public domain; (c) is lawfully received by the Recipient from a third party without restriction and without breach of this agreement or any other agreement; (d) is approved for public release or use by written authorization of the Disclosing Party; (e) the Recipient can demonstrate was independently developed by it without reference to the Disclosing Party’s Confidential Information; or (f) is disclosed pursuant to the requirement or request of a governmental agency or court of competent jurisdiction to the extent such disclosure is required by a valid law, regulation or court order and sufficient notice is given by the Recipient to the Disclosing Party of any such requirement or request in order to permit the Disclosing Party to seek an appropriate protective order or exemption from such requirement or request.
3. Non-Disclosure and Confidentiality. The Recipient shall not (a) use the Confidential Information except for the Business Purpose, or (b) disclose or make the Confidential Information available to any person or entity (other than Related Parties, as defined below) without the prior written consent of the Disclosing Party. Each Party shall take reasonable security precautions to protect the Confidential Information, at least as strict as the precautions it takes to protect its own confidential and proprietary information of a similar nature. Without the prior written consent of the Disclosing Party, the Recipient of Confidential Information shall restrict the disclosure and availability of Confidential Information to Recipient’s financial, tax, or legal advisors, or to its directors, officers, or employees with a demonstrable need to know such Confidential Information (each, a “Related Party”, and, collectively, the “Related Parties”), provided that any such Related Party either agrees to be bound by this Agreement or is already bound by confidentiality obligations no less restrictive than those in this Agreement. Each Party shall be responsible for the breach of this Agreement by any Related Party. Neither Party shall use any Confidential Information received by it to develop a product or service which competes with or imitates products of the Disclosing Party or engage in reverse engineering to develop similar products or services using the Confidential Information (it being acknowledged and understood that both Parties are engaged in the business of beer brewing and that competing beer products are regularly independently developed within the beer industry using the same or similar raw materials, processes and packaging). The Recipient shall prevent commingling of the Confidential Information with similar information or material of other third parties. The obligations of confidentiality and protection under this Agreement shall survive for three (3) years following the expiration of the Term.
4. Non-Solicitation. Other than through general employment listings and advertising or through the efforts of employment search firms, each Party shall not, during the Term of this Agreement and for one (1) year thereafter, directly or indirectly, solicit or hire any employee or independent contractor of the other Party, or induce any such person to abandon their relationship with the other Party.
5. No Warranty. THE CONFIDENTIAL INFORMATION IS PROVIDED “AS IS,” AND THE DISCLOSING PARTY HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES REGARDING THE ACCURACY, SUFFICIENCY, SUITABILITY OR NON-INFRINGEMENT OF SUCH CONFIDENTIAL INFORMATION.
6. No License or Obligations; Return of Confidential Information. This Agreement does not represent nor imply any agreement or commitment to enter into any further business relationship. This Agreement does not create any agency or partnership relationship between the Parties or authorize a Party to use the other Party’s name or trademarks. As between the Parties, all Confidential Information received by a Recipient shall remain the sole and exclusive property of the Disclosing Party. Upon written request by the Disclosing Party, the Recipient shall return to the Disclosing Party, or shall destroy in a manner satisfactory to the Disclosing Party, all tangible or electronic forms of Confidential Information, including any and all copies of the Confidential Information or notes containing the Confidential Information, and shall provide a written certification to the Disclosing Party that all tangible forms of the Confidential Information have been returned or destroyed.
7. Remedies for Breach. The Parties agree that money damages would be inadequate to remedy any breach of this Agreement. As a result, a non-breaching party shall be entitled to seek, and a court of competent jurisdiction may grant, specific performance and injunctive or other equitable relief as a remedy for any breach of this Agreement. Such remedy shall be in addition to all other remedies, including money damages, available to a non-breaching party at law or in equity.
8. Notices. Any notice given by one Party to the other under this Agreement shall be sent by registered mail, return receipt requested, or reputable overnight courier to the addresses listed below (or such address changed by the giving of like notice to the other Party), and shall be deemed received upon actual receipt by the recipient Party.
9. Governing Law; Attorneys’ Fees. This Agreement, including all matters of construction, validity and performance, shall be governed by, construed and enforced in accordance with the laws of the State of Washington, as applied to contracts made and to be fully performed in such state, without regard to its conflict of law rules. The Parties consent to the jurisdiction of the state and federal courts located in New York, New York. A prevailing Party shall be entitled to an award of its reasonable attorneys’ fees and costs arising out of this Agreement.
10. Miscellaneous. This Agreement sets forth the entire agreement between the Parties hereto with respect to its subject matter, and any and all prior agreements, understandings or representations with respect to its subject matter are merged herein. This Agreement may be amended and any provision may be waived only by the written agreement of the Parties. The terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective successors and assigns of the Parties, provided that Confidential Information of the Disclosing Party may not be assigned by the Recipient without the prior written consent of the Disclosing Party. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be effected, impaired or invalidated thereby. This Agreement may be executed in two or more counterparts or by other electronic means, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above.
PYRAMID BREWERIES INC., MAGIC HAT BREWING COMPANY & PERFORMING
ARTS CENTER, INC.,
a Washington corporation a Vermont corporation
By (signature): By (signature):
Printed Name: Printed Name:
Title: Title:
Address: 91 South Royal Brougham Way Address: 5 Bartlett Road
Seattle, WA 98134 South Burlington, VT 05403
Fax: Fax: (802) 658-5788
| Contradiction |
541_nda-1 | 541_nda-1_0 | Q: All Confidential Information shall be expressly identified by the Disclosing Party.
Text: MUTUAL NON-DISCLOSURE AGREEMENT
THIS MUTUAL NON-DISCLOSURE AGREEMENT (the “Agreement”), effective April 3, 2008 (the “Effective Date”), is between Magic Hat Brewing Company & Performing Arts Center, Inc., a Vermont corporation (“Company”), and PYRAMID BREWERIES INC., a Washington corporation (“Pyramid”). Pyramid and the Company are sometimes referred to in this Agreement individually as a “Party” and collectively as the “Parties”.
WHEREAS, Pyramid is a reporting company with the Securities and Exchange Commission and files reports and proxy materials under the Securities Exchange Act of 1934, which are publicly available.
WHEREAS, the Parties wish to exchange certain nonpublic confidential business information for purposes of engaging in preliminary discussions regarding and evaluating a possible strategic merger, acquisition or business combination between the Parties (the “Business Purpose”).
NOW THEREFORE, the Parties agree as follows:
1. Definition of Confidential Information. The term “Confidential Information” means any and all information that is or has been received by either Party (the “Recipient”) from the other Party (the “Disclosing Party”), or which the Recipient has had access to, during the four (4)-month period commencing on the Effective Date (the “Term”), and that is either (a) marked as “confidential,” “proprietary,” or such similar term, or (b) non-public information related to the Disclosing Party’s business, which the Receiving Party should reasonably know is confidential based on the nature of such information. Without limiting the generality of the foregoing, Confidential Information shall include the following, whether in tangible or electronic form: business plans, customer database information, employee and independent contractor lists, internal reports and investigations, research and work in progress, source and object code, technical manuals, financial statements and projections, cost summaries and pricing formulae, algorithms, confidential filings with any international, federal or state agency, and all other information concerning methods of doing business, ideas and inventions (whether or not patentable), and data that derives independent economic value, actual or potential, from not being generally known to persons who can obtain economic value from its disclosure or use that is the subject of reasonable efforts by the Company to maintain its secrecy.
2. Excluded Information. Confidential Information shall not include any information that: (a) prior to its disclosure by the Disclosing Party is already lawfully and rightfully known by or available to the Recipient as evidenced by prior written records;
(b) through no wrongful act, fault or negligence on the part of the Recipient is or hereafter becomes part of the public domain; (c) is lawfully received by the Recipient from a third party without restriction and without breach of this agreement or any other agreement; (d) is approved for public release or use by written authorization of the Disclosing Party; (e) the Recipient can demonstrate was independently developed by it without reference to the Disclosing Party’s Confidential Information; or (f) is disclosed pursuant to the requirement or request of a governmental agency or court of competent jurisdiction to the extent such disclosure is required by a valid law, regulation or court order and sufficient notice is given by the Recipient to the Disclosing Party of any such requirement or request in order to permit the Disclosing Party to seek an appropriate protective order or exemption from such requirement or request.
3. Non-Disclosure and Confidentiality. The Recipient shall not (a) use the Confidential Information except for the Business Purpose, or (b) disclose or make the Confidential Information available to any person or entity (other than Related Parties, as defined below) without the prior written consent of the Disclosing Party. Each Party shall take reasonable security precautions to protect the Confidential Information, at least as strict as the precautions it takes to protect its own confidential and proprietary information of a similar nature. Without the prior written consent of the Disclosing Party, the Recipient of Confidential Information shall restrict the disclosure and availability of Confidential Information to Recipient’s financial, tax, or legal advisors, or to its directors, officers, or employees with a demonstrable need to know such Confidential Information (each, a “Related Party”, and, collectively, the “Related Parties”), provided that any such Related Party either agrees to be bound by this Agreement or is already bound by confidentiality obligations no less restrictive than those in this Agreement. Each Party shall be responsible for the breach of this Agreement by any Related Party. Neither Party shall use any Confidential Information received by it to develop a product or service which competes with or imitates products of the Disclosing Party or engage in reverse engineering to develop similar products or services using the Confidential Information (it being acknowledged and understood that both Parties are engaged in the business of beer brewing and that competing beer products are regularly independently developed within the beer industry using the same or similar raw materials, processes and packaging). The Recipient shall prevent commingling of the Confidential Information with similar information or material of other third parties. The obligations of confidentiality and protection under this Agreement shall survive for three (3) years following the expiration of the Term.
4. Non-Solicitation. Other than through general employment listings and advertising or through the efforts of employment search firms, each Party shall not, during the Term of this Agreement and for one (1) year thereafter, directly or indirectly, solicit or hire any employee or independent contractor of the other Party, or induce any such person to abandon their relationship with the other Party.
5. No Warranty. THE CONFIDENTIAL INFORMATION IS PROVIDED “AS IS,” AND THE DISCLOSING PARTY HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES REGARDING THE ACCURACY, SUFFICIENCY, SUITABILITY OR NON-INFRINGEMENT OF SUCH CONFIDENTIAL INFORMATION.
6. No License or Obligations; Return of Confidential Information. This Agreement does not represent nor imply any agreement or commitment to enter into any further business relationship. This Agreement does not create any agency or partnership relationship between the Parties or authorize a Party to use the other Party’s name or trademarks. As between the Parties, all Confidential Information received by a Recipient shall remain the sole and exclusive property of the Disclosing Party. Upon written request by the Disclosing Party, the Recipient shall return to the Disclosing Party, or shall destroy in a manner satisfactory to the Disclosing Party, all tangible or electronic forms of Confidential Information, including any and all copies of the Confidential Information or notes containing the Confidential Information, and shall provide a written certification to the Disclosing Party that all tangible forms of the Confidential Information have been returned or destroyed.
7. Remedies for Breach. The Parties agree that money damages would be inadequate to remedy any breach of this Agreement. As a result, a non-breaching party shall be entitled to seek, and a court of competent jurisdiction may grant, specific performance and injunctive or other equitable relief as a remedy for any breach of this Agreement. Such remedy shall be in addition to all other remedies, including money damages, available to a non-breaching party at law or in equity.
8. Notices. Any notice given by one Party to the other under this Agreement shall be sent by registered mail, return receipt requested, or reputable overnight courier to the addresses listed below (or such address changed by the giving of like notice to the other Party), and shall be deemed received upon actual receipt by the recipient Party.
9. Governing Law; Attorneys’ Fees. This Agreement, including all matters of construction, validity and performance, shall be governed by, construed and enforced in accordance with the laws of the State of Washington, as applied to contracts made and to be fully performed in such state, without regard to its conflict of law rules. The Parties consent to the jurisdiction of the state and federal courts located in New York, New York. A prevailing Party shall be entitled to an award of its reasonable attorneys’ fees and costs arising out of this Agreement.
10. Miscellaneous. This Agreement sets forth the entire agreement between the Parties hereto with respect to its subject matter, and any and all prior agreements, understandings or representations with respect to its subject matter are merged herein. This Agreement may be amended and any provision may be waived only by the written agreement of the Parties. The terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective successors and assigns of the Parties, provided that Confidential Information of the Disclosing Party may not be assigned by the Recipient without the prior written consent of the Disclosing Party. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be effected, impaired or invalidated thereby. This Agreement may be executed in two or more counterparts or by other electronic means, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above.
PYRAMID BREWERIES INC., MAGIC HAT BREWING COMPANY & PERFORMING
ARTS CENTER, INC.,
a Washington corporation a Vermont corporation
By (signature): By (signature):
Printed Name: Printed Name:
Title: Title:
Address: 91 South Royal Brougham Way Address: 5 Bartlett Road
Seattle, WA 98134 South Burlington, VT 05403
Fax: Fax: (802) 658-5788
| Contradiction |
541_nda-19 | 541_nda-19_0 | Q: Some obligations of Agreement may survive termination of Agreement.
Text: MUTUAL NON-DISCLOSURE AGREEMENT
THIS MUTUAL NON-DISCLOSURE AGREEMENT (the “Agreement”), effective April 3, 2008 (the “Effective Date”), is between Magic Hat Brewing Company & Performing Arts Center, Inc., a Vermont corporation (“Company”), and PYRAMID BREWERIES INC., a Washington corporation (“Pyramid”). Pyramid and the Company are sometimes referred to in this Agreement individually as a “Party” and collectively as the “Parties”.
WHEREAS, Pyramid is a reporting company with the Securities and Exchange Commission and files reports and proxy materials under the Securities Exchange Act of 1934, which are publicly available.
WHEREAS, the Parties wish to exchange certain nonpublic confidential business information for purposes of engaging in preliminary discussions regarding and evaluating a possible strategic merger, acquisition or business combination between the Parties (the “Business Purpose”).
NOW THEREFORE, the Parties agree as follows:
1. Definition of Confidential Information. The term “Confidential Information” means any and all information that is or has been received by either Party (the “Recipient”) from the other Party (the “Disclosing Party”), or which the Recipient has had access to, during the four (4)-month period commencing on the Effective Date (the “Term”), and that is either (a) marked as “confidential,” “proprietary,” or such similar term, or (b) non-public information related to the Disclosing Party’s business, which the Receiving Party should reasonably know is confidential based on the nature of such information. Without limiting the generality of the foregoing, Confidential Information shall include the following, whether in tangible or electronic form: business plans, customer database information, employee and independent contractor lists, internal reports and investigations, research and work in progress, source and object code, technical manuals, financial statements and projections, cost summaries and pricing formulae, algorithms, confidential filings with any international, federal or state agency, and all other information concerning methods of doing business, ideas and inventions (whether or not patentable), and data that derives independent economic value, actual or potential, from not being generally known to persons who can obtain economic value from its disclosure or use that is the subject of reasonable efforts by the Company to maintain its secrecy.
2. Excluded Information. Confidential Information shall not include any information that: (a) prior to its disclosure by the Disclosing Party is already lawfully and rightfully known by or available to the Recipient as evidenced by prior written records;
(b) through no wrongful act, fault or negligence on the part of the Recipient is or hereafter becomes part of the public domain; (c) is lawfully received by the Recipient from a third party without restriction and without breach of this agreement or any other agreement; (d) is approved for public release or use by written authorization of the Disclosing Party; (e) the Recipient can demonstrate was independently developed by it without reference to the Disclosing Party’s Confidential Information; or (f) is disclosed pursuant to the requirement or request of a governmental agency or court of competent jurisdiction to the extent such disclosure is required by a valid law, regulation or court order and sufficient notice is given by the Recipient to the Disclosing Party of any such requirement or request in order to permit the Disclosing Party to seek an appropriate protective order or exemption from such requirement or request.
3. Non-Disclosure and Confidentiality. The Recipient shall not (a) use the Confidential Information except for the Business Purpose, or (b) disclose or make the Confidential Information available to any person or entity (other than Related Parties, as defined below) without the prior written consent of the Disclosing Party. Each Party shall take reasonable security precautions to protect the Confidential Information, at least as strict as the precautions it takes to protect its own confidential and proprietary information of a similar nature. Without the prior written consent of the Disclosing Party, the Recipient of Confidential Information shall restrict the disclosure and availability of Confidential Information to Recipient’s financial, tax, or legal advisors, or to its directors, officers, or employees with a demonstrable need to know such Confidential Information (each, a “Related Party”, and, collectively, the “Related Parties”), provided that any such Related Party either agrees to be bound by this Agreement or is already bound by confidentiality obligations no less restrictive than those in this Agreement. Each Party shall be responsible for the breach of this Agreement by any Related Party. Neither Party shall use any Confidential Information received by it to develop a product or service which competes with or imitates products of the Disclosing Party or engage in reverse engineering to develop similar products or services using the Confidential Information (it being acknowledged and understood that both Parties are engaged in the business of beer brewing and that competing beer products are regularly independently developed within the beer industry using the same or similar raw materials, processes and packaging). The Recipient shall prevent commingling of the Confidential Information with similar information or material of other third parties. The obligations of confidentiality and protection under this Agreement shall survive for three (3) years following the expiration of the Term.
4. Non-Solicitation. Other than through general employment listings and advertising or through the efforts of employment search firms, each Party shall not, during the Term of this Agreement and for one (1) year thereafter, directly or indirectly, solicit or hire any employee or independent contractor of the other Party, or induce any such person to abandon their relationship with the other Party.
5. No Warranty. THE CONFIDENTIAL INFORMATION IS PROVIDED “AS IS,” AND THE DISCLOSING PARTY HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES REGARDING THE ACCURACY, SUFFICIENCY, SUITABILITY OR NON-INFRINGEMENT OF SUCH CONFIDENTIAL INFORMATION.
6. No License or Obligations; Return of Confidential Information. This Agreement does not represent nor imply any agreement or commitment to enter into any further business relationship. This Agreement does not create any agency or partnership relationship between the Parties or authorize a Party to use the other Party’s name or trademarks. As between the Parties, all Confidential Information received by a Recipient shall remain the sole and exclusive property of the Disclosing Party. Upon written request by the Disclosing Party, the Recipient shall return to the Disclosing Party, or shall destroy in a manner satisfactory to the Disclosing Party, all tangible or electronic forms of Confidential Information, including any and all copies of the Confidential Information or notes containing the Confidential Information, and shall provide a written certification to the Disclosing Party that all tangible forms of the Confidential Information have been returned or destroyed.
7. Remedies for Breach. The Parties agree that money damages would be inadequate to remedy any breach of this Agreement. As a result, a non-breaching party shall be entitled to seek, and a court of competent jurisdiction may grant, specific performance and injunctive or other equitable relief as a remedy for any breach of this Agreement. Such remedy shall be in addition to all other remedies, including money damages, available to a non-breaching party at law or in equity.
8. Notices. Any notice given by one Party to the other under this Agreement shall be sent by registered mail, return receipt requested, or reputable overnight courier to the addresses listed below (or such address changed by the giving of like notice to the other Party), and shall be deemed received upon actual receipt by the recipient Party.
9. Governing Law; Attorneys’ Fees. This Agreement, including all matters of construction, validity and performance, shall be governed by, construed and enforced in accordance with the laws of the State of Washington, as applied to contracts made and to be fully performed in such state, without regard to its conflict of law rules. The Parties consent to the jurisdiction of the state and federal courts located in New York, New York. A prevailing Party shall be entitled to an award of its reasonable attorneys’ fees and costs arising out of this Agreement.
10. Miscellaneous. This Agreement sets forth the entire agreement between the Parties hereto with respect to its subject matter, and any and all prior agreements, understandings or representations with respect to its subject matter are merged herein. This Agreement may be amended and any provision may be waived only by the written agreement of the Parties. The terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective successors and assigns of the Parties, provided that Confidential Information of the Disclosing Party may not be assigned by the Recipient without the prior written consent of the Disclosing Party. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be effected, impaired or invalidated thereby. This Agreement may be executed in two or more counterparts or by other electronic means, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above.
PYRAMID BREWERIES INC., MAGIC HAT BREWING COMPANY & PERFORMING
ARTS CENTER, INC.,
a Washington corporation a Vermont corporation
By (signature): By (signature):
Printed Name: Printed Name:
Title: Title:
Address: 91 South Royal Brougham Way Address: 5 Bartlett Road
Seattle, WA 98134 South Burlington, VT 05403
Fax: Fax: (802) 658-5788
| Entailment |
541_nda-12 | 541_nda-12_0 | Q: Receiving Party may independently develop information similar to Confidential Information.
Text: MUTUAL NON-DISCLOSURE AGREEMENT
THIS MUTUAL NON-DISCLOSURE AGREEMENT (the “Agreement”), effective April 3, 2008 (the “Effective Date”), is between Magic Hat Brewing Company & Performing Arts Center, Inc., a Vermont corporation (“Company”), and PYRAMID BREWERIES INC., a Washington corporation (“Pyramid”). Pyramid and the Company are sometimes referred to in this Agreement individually as a “Party” and collectively as the “Parties”.
WHEREAS, Pyramid is a reporting company with the Securities and Exchange Commission and files reports and proxy materials under the Securities Exchange Act of 1934, which are publicly available.
WHEREAS, the Parties wish to exchange certain nonpublic confidential business information for purposes of engaging in preliminary discussions regarding and evaluating a possible strategic merger, acquisition or business combination between the Parties (the “Business Purpose”).
NOW THEREFORE, the Parties agree as follows:
1. Definition of Confidential Information. The term “Confidential Information” means any and all information that is or has been received by either Party (the “Recipient”) from the other Party (the “Disclosing Party”), or which the Recipient has had access to, during the four (4)-month period commencing on the Effective Date (the “Term”), and that is either (a) marked as “confidential,” “proprietary,” or such similar term, or (b) non-public information related to the Disclosing Party’s business, which the Receiving Party should reasonably know is confidential based on the nature of such information. Without limiting the generality of the foregoing, Confidential Information shall include the following, whether in tangible or electronic form: business plans, customer database information, employee and independent contractor lists, internal reports and investigations, research and work in progress, source and object code, technical manuals, financial statements and projections, cost summaries and pricing formulae, algorithms, confidential filings with any international, federal or state agency, and all other information concerning methods of doing business, ideas and inventions (whether or not patentable), and data that derives independent economic value, actual or potential, from not being generally known to persons who can obtain economic value from its disclosure or use that is the subject of reasonable efforts by the Company to maintain its secrecy.
2. Excluded Information. Confidential Information shall not include any information that: (a) prior to its disclosure by the Disclosing Party is already lawfully and rightfully known by or available to the Recipient as evidenced by prior written records;
(b) through no wrongful act, fault or negligence on the part of the Recipient is or hereafter becomes part of the public domain; (c) is lawfully received by the Recipient from a third party without restriction and without breach of this agreement or any other agreement; (d) is approved for public release or use by written authorization of the Disclosing Party; (e) the Recipient can demonstrate was independently developed by it without reference to the Disclosing Party’s Confidential Information; or (f) is disclosed pursuant to the requirement or request of a governmental agency or court of competent jurisdiction to the extent such disclosure is required by a valid law, regulation or court order and sufficient notice is given by the Recipient to the Disclosing Party of any such requirement or request in order to permit the Disclosing Party to seek an appropriate protective order or exemption from such requirement or request.
3. Non-Disclosure and Confidentiality. The Recipient shall not (a) use the Confidential Information except for the Business Purpose, or (b) disclose or make the Confidential Information available to any person or entity (other than Related Parties, as defined below) without the prior written consent of the Disclosing Party. Each Party shall take reasonable security precautions to protect the Confidential Information, at least as strict as the precautions it takes to protect its own confidential and proprietary information of a similar nature. Without the prior written consent of the Disclosing Party, the Recipient of Confidential Information shall restrict the disclosure and availability of Confidential Information to Recipient’s financial, tax, or legal advisors, or to its directors, officers, or employees with a demonstrable need to know such Confidential Information (each, a “Related Party”, and, collectively, the “Related Parties”), provided that any such Related Party either agrees to be bound by this Agreement or is already bound by confidentiality obligations no less restrictive than those in this Agreement. Each Party shall be responsible for the breach of this Agreement by any Related Party. Neither Party shall use any Confidential Information received by it to develop a product or service which competes with or imitates products of the Disclosing Party or engage in reverse engineering to develop similar products or services using the Confidential Information (it being acknowledged and understood that both Parties are engaged in the business of beer brewing and that competing beer products are regularly independently developed within the beer industry using the same or similar raw materials, processes and packaging). The Recipient shall prevent commingling of the Confidential Information with similar information or material of other third parties. The obligations of confidentiality and protection under this Agreement shall survive for three (3) years following the expiration of the Term.
4. Non-Solicitation. Other than through general employment listings and advertising or through the efforts of employment search firms, each Party shall not, during the Term of this Agreement and for one (1) year thereafter, directly or indirectly, solicit or hire any employee or independent contractor of the other Party, or induce any such person to abandon their relationship with the other Party.
5. No Warranty. THE CONFIDENTIAL INFORMATION IS PROVIDED “AS IS,” AND THE DISCLOSING PARTY HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES REGARDING THE ACCURACY, SUFFICIENCY, SUITABILITY OR NON-INFRINGEMENT OF SUCH CONFIDENTIAL INFORMATION.
6. No License or Obligations; Return of Confidential Information. This Agreement does not represent nor imply any agreement or commitment to enter into any further business relationship. This Agreement does not create any agency or partnership relationship between the Parties or authorize a Party to use the other Party’s name or trademarks. As between the Parties, all Confidential Information received by a Recipient shall remain the sole and exclusive property of the Disclosing Party. Upon written request by the Disclosing Party, the Recipient shall return to the Disclosing Party, or shall destroy in a manner satisfactory to the Disclosing Party, all tangible or electronic forms of Confidential Information, including any and all copies of the Confidential Information or notes containing the Confidential Information, and shall provide a written certification to the Disclosing Party that all tangible forms of the Confidential Information have been returned or destroyed.
7. Remedies for Breach. The Parties agree that money damages would be inadequate to remedy any breach of this Agreement. As a result, a non-breaching party shall be entitled to seek, and a court of competent jurisdiction may grant, specific performance and injunctive or other equitable relief as a remedy for any breach of this Agreement. Such remedy shall be in addition to all other remedies, including money damages, available to a non-breaching party at law or in equity.
8. Notices. Any notice given by one Party to the other under this Agreement shall be sent by registered mail, return receipt requested, or reputable overnight courier to the addresses listed below (or such address changed by the giving of like notice to the other Party), and shall be deemed received upon actual receipt by the recipient Party.
9. Governing Law; Attorneys’ Fees. This Agreement, including all matters of construction, validity and performance, shall be governed by, construed and enforced in accordance with the laws of the State of Washington, as applied to contracts made and to be fully performed in such state, without regard to its conflict of law rules. The Parties consent to the jurisdiction of the state and federal courts located in New York, New York. A prevailing Party shall be entitled to an award of its reasonable attorneys’ fees and costs arising out of this Agreement.
10. Miscellaneous. This Agreement sets forth the entire agreement between the Parties hereto with respect to its subject matter, and any and all prior agreements, understandings or representations with respect to its subject matter are merged herein. This Agreement may be amended and any provision may be waived only by the written agreement of the Parties. The terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective successors and assigns of the Parties, provided that Confidential Information of the Disclosing Party may not be assigned by the Recipient without the prior written consent of the Disclosing Party. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be effected, impaired or invalidated thereby. This Agreement may be executed in two or more counterparts or by other electronic means, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above.
PYRAMID BREWERIES INC., MAGIC HAT BREWING COMPANY & PERFORMING
ARTS CENTER, INC.,
a Washington corporation a Vermont corporation
By (signature): By (signature):
Printed Name: Printed Name:
Title: Title:
Address: 91 South Royal Brougham Way Address: 5 Bartlett Road
Seattle, WA 98134 South Burlington, VT 05403
Fax: Fax: (802) 658-5788
| Entailment |
541_nda-20 | 541_nda-20_0 | Q: Receiving Party may retain some Confidential Information even after the return or destruction of Confidential Information.
Text: MUTUAL NON-DISCLOSURE AGREEMENT
THIS MUTUAL NON-DISCLOSURE AGREEMENT (the “Agreement”), effective April 3, 2008 (the “Effective Date”), is between Magic Hat Brewing Company & Performing Arts Center, Inc., a Vermont corporation (“Company”), and PYRAMID BREWERIES INC., a Washington corporation (“Pyramid”). Pyramid and the Company are sometimes referred to in this Agreement individually as a “Party” and collectively as the “Parties”.
WHEREAS, Pyramid is a reporting company with the Securities and Exchange Commission and files reports and proxy materials under the Securities Exchange Act of 1934, which are publicly available.
WHEREAS, the Parties wish to exchange certain nonpublic confidential business information for purposes of engaging in preliminary discussions regarding and evaluating a possible strategic merger, acquisition or business combination between the Parties (the “Business Purpose”).
NOW THEREFORE, the Parties agree as follows:
1. Definition of Confidential Information. The term “Confidential Information” means any and all information that is or has been received by either Party (the “Recipient”) from the other Party (the “Disclosing Party”), or which the Recipient has had access to, during the four (4)-month period commencing on the Effective Date (the “Term”), and that is either (a) marked as “confidential,” “proprietary,” or such similar term, or (b) non-public information related to the Disclosing Party’s business, which the Receiving Party should reasonably know is confidential based on the nature of such information. Without limiting the generality of the foregoing, Confidential Information shall include the following, whether in tangible or electronic form: business plans, customer database information, employee and independent contractor lists, internal reports and investigations, research and work in progress, source and object code, technical manuals, financial statements and projections, cost summaries and pricing formulae, algorithms, confidential filings with any international, federal or state agency, and all other information concerning methods of doing business, ideas and inventions (whether or not patentable), and data that derives independent economic value, actual or potential, from not being generally known to persons who can obtain economic value from its disclosure or use that is the subject of reasonable efforts by the Company to maintain its secrecy.
2. Excluded Information. Confidential Information shall not include any information that: (a) prior to its disclosure by the Disclosing Party is already lawfully and rightfully known by or available to the Recipient as evidenced by prior written records;
(b) through no wrongful act, fault or negligence on the part of the Recipient is or hereafter becomes part of the public domain; (c) is lawfully received by the Recipient from a third party without restriction and without breach of this agreement or any other agreement; (d) is approved for public release or use by written authorization of the Disclosing Party; (e) the Recipient can demonstrate was independently developed by it without reference to the Disclosing Party’s Confidential Information; or (f) is disclosed pursuant to the requirement or request of a governmental agency or court of competent jurisdiction to the extent such disclosure is required by a valid law, regulation or court order and sufficient notice is given by the Recipient to the Disclosing Party of any such requirement or request in order to permit the Disclosing Party to seek an appropriate protective order or exemption from such requirement or request.
3. Non-Disclosure and Confidentiality. The Recipient shall not (a) use the Confidential Information except for the Business Purpose, or (b) disclose or make the Confidential Information available to any person or entity (other than Related Parties, as defined below) without the prior written consent of the Disclosing Party. Each Party shall take reasonable security precautions to protect the Confidential Information, at least as strict as the precautions it takes to protect its own confidential and proprietary information of a similar nature. Without the prior written consent of the Disclosing Party, the Recipient of Confidential Information shall restrict the disclosure and availability of Confidential Information to Recipient’s financial, tax, or legal advisors, or to its directors, officers, or employees with a demonstrable need to know such Confidential Information (each, a “Related Party”, and, collectively, the “Related Parties”), provided that any such Related Party either agrees to be bound by this Agreement or is already bound by confidentiality obligations no less restrictive than those in this Agreement. Each Party shall be responsible for the breach of this Agreement by any Related Party. Neither Party shall use any Confidential Information received by it to develop a product or service which competes with or imitates products of the Disclosing Party or engage in reverse engineering to develop similar products or services using the Confidential Information (it being acknowledged and understood that both Parties are engaged in the business of beer brewing and that competing beer products are regularly independently developed within the beer industry using the same or similar raw materials, processes and packaging). The Recipient shall prevent commingling of the Confidential Information with similar information or material of other third parties. The obligations of confidentiality and protection under this Agreement shall survive for three (3) years following the expiration of the Term.
4. Non-Solicitation. Other than through general employment listings and advertising or through the efforts of employment search firms, each Party shall not, during the Term of this Agreement and for one (1) year thereafter, directly or indirectly, solicit or hire any employee or independent contractor of the other Party, or induce any such person to abandon their relationship with the other Party.
5. No Warranty. THE CONFIDENTIAL INFORMATION IS PROVIDED “AS IS,” AND THE DISCLOSING PARTY HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES REGARDING THE ACCURACY, SUFFICIENCY, SUITABILITY OR NON-INFRINGEMENT OF SUCH CONFIDENTIAL INFORMATION.
6. No License or Obligations; Return of Confidential Information. This Agreement does not represent nor imply any agreement or commitment to enter into any further business relationship. This Agreement does not create any agency or partnership relationship between the Parties or authorize a Party to use the other Party’s name or trademarks. As between the Parties, all Confidential Information received by a Recipient shall remain the sole and exclusive property of the Disclosing Party. Upon written request by the Disclosing Party, the Recipient shall return to the Disclosing Party, or shall destroy in a manner satisfactory to the Disclosing Party, all tangible or electronic forms of Confidential Information, including any and all copies of the Confidential Information or notes containing the Confidential Information, and shall provide a written certification to the Disclosing Party that all tangible forms of the Confidential Information have been returned or destroyed.
7. Remedies for Breach. The Parties agree that money damages would be inadequate to remedy any breach of this Agreement. As a result, a non-breaching party shall be entitled to seek, and a court of competent jurisdiction may grant, specific performance and injunctive or other equitable relief as a remedy for any breach of this Agreement. Such remedy shall be in addition to all other remedies, including money damages, available to a non-breaching party at law or in equity.
8. Notices. Any notice given by one Party to the other under this Agreement shall be sent by registered mail, return receipt requested, or reputable overnight courier to the addresses listed below (or such address changed by the giving of like notice to the other Party), and shall be deemed received upon actual receipt by the recipient Party.
9. Governing Law; Attorneys’ Fees. This Agreement, including all matters of construction, validity and performance, shall be governed by, construed and enforced in accordance with the laws of the State of Washington, as applied to contracts made and to be fully performed in such state, without regard to its conflict of law rules. The Parties consent to the jurisdiction of the state and federal courts located in New York, New York. A prevailing Party shall be entitled to an award of its reasonable attorneys’ fees and costs arising out of this Agreement.
10. Miscellaneous. This Agreement sets forth the entire agreement between the Parties hereto with respect to its subject matter, and any and all prior agreements, understandings or representations with respect to its subject matter are merged herein. This Agreement may be amended and any provision may be waived only by the written agreement of the Parties. The terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective successors and assigns of the Parties, provided that Confidential Information of the Disclosing Party may not be assigned by the Recipient without the prior written consent of the Disclosing Party. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be effected, impaired or invalidated thereby. This Agreement may be executed in two or more counterparts or by other electronic means, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above.
PYRAMID BREWERIES INC., MAGIC HAT BREWING COMPANY & PERFORMING
ARTS CENTER, INC.,
a Washington corporation a Vermont corporation
By (signature): By (signature):
Printed Name: Printed Name:
Title: Title:
Address: 91 South Royal Brougham Way Address: 5 Bartlett Road
Seattle, WA 98134 South Burlington, VT 05403
Fax: Fax: (802) 658-5788
| Contradiction |
541_nda-3 | 541_nda-3_0 | Q: Confidential Information may include verbally conveyed information.
Text: MUTUAL NON-DISCLOSURE AGREEMENT
THIS MUTUAL NON-DISCLOSURE AGREEMENT (the “Agreement”), effective April 3, 2008 (the “Effective Date”), is between Magic Hat Brewing Company & Performing Arts Center, Inc., a Vermont corporation (“Company”), and PYRAMID BREWERIES INC., a Washington corporation (“Pyramid”). Pyramid and the Company are sometimes referred to in this Agreement individually as a “Party” and collectively as the “Parties”.
WHEREAS, Pyramid is a reporting company with the Securities and Exchange Commission and files reports and proxy materials under the Securities Exchange Act of 1934, which are publicly available.
WHEREAS, the Parties wish to exchange certain nonpublic confidential business information for purposes of engaging in preliminary discussions regarding and evaluating a possible strategic merger, acquisition or business combination between the Parties (the “Business Purpose”).
NOW THEREFORE, the Parties agree as follows:
1. Definition of Confidential Information. The term “Confidential Information” means any and all information that is or has been received by either Party (the “Recipient”) from the other Party (the “Disclosing Party”), or which the Recipient has had access to, during the four (4)-month period commencing on the Effective Date (the “Term”), and that is either (a) marked as “confidential,” “proprietary,” or such similar term, or (b) non-public information related to the Disclosing Party’s business, which the Receiving Party should reasonably know is confidential based on the nature of such information. Without limiting the generality of the foregoing, Confidential Information shall include the following, whether in tangible or electronic form: business plans, customer database information, employee and independent contractor lists, internal reports and investigations, research and work in progress, source and object code, technical manuals, financial statements and projections, cost summaries and pricing formulae, algorithms, confidential filings with any international, federal or state agency, and all other information concerning methods of doing business, ideas and inventions (whether or not patentable), and data that derives independent economic value, actual or potential, from not being generally known to persons who can obtain economic value from its disclosure or use that is the subject of reasonable efforts by the Company to maintain its secrecy.
2. Excluded Information. Confidential Information shall not include any information that: (a) prior to its disclosure by the Disclosing Party is already lawfully and rightfully known by or available to the Recipient as evidenced by prior written records;
(b) through no wrongful act, fault or negligence on the part of the Recipient is or hereafter becomes part of the public domain; (c) is lawfully received by the Recipient from a third party without restriction and without breach of this agreement or any other agreement; (d) is approved for public release or use by written authorization of the Disclosing Party; (e) the Recipient can demonstrate was independently developed by it without reference to the Disclosing Party’s Confidential Information; or (f) is disclosed pursuant to the requirement or request of a governmental agency or court of competent jurisdiction to the extent such disclosure is required by a valid law, regulation or court order and sufficient notice is given by the Recipient to the Disclosing Party of any such requirement or request in order to permit the Disclosing Party to seek an appropriate protective order or exemption from such requirement or request.
3. Non-Disclosure and Confidentiality. The Recipient shall not (a) use the Confidential Information except for the Business Purpose, or (b) disclose or make the Confidential Information available to any person or entity (other than Related Parties, as defined below) without the prior written consent of the Disclosing Party. Each Party shall take reasonable security precautions to protect the Confidential Information, at least as strict as the precautions it takes to protect its own confidential and proprietary information of a similar nature. Without the prior written consent of the Disclosing Party, the Recipient of Confidential Information shall restrict the disclosure and availability of Confidential Information to Recipient’s financial, tax, or legal advisors, or to its directors, officers, or employees with a demonstrable need to know such Confidential Information (each, a “Related Party”, and, collectively, the “Related Parties”), provided that any such Related Party either agrees to be bound by this Agreement or is already bound by confidentiality obligations no less restrictive than those in this Agreement. Each Party shall be responsible for the breach of this Agreement by any Related Party. Neither Party shall use any Confidential Information received by it to develop a product or service which competes with or imitates products of the Disclosing Party or engage in reverse engineering to develop similar products or services using the Confidential Information (it being acknowledged and understood that both Parties are engaged in the business of beer brewing and that competing beer products are regularly independently developed within the beer industry using the same or similar raw materials, processes and packaging). The Recipient shall prevent commingling of the Confidential Information with similar information or material of other third parties. The obligations of confidentiality and protection under this Agreement shall survive for three (3) years following the expiration of the Term.
4. Non-Solicitation. Other than through general employment listings and advertising or through the efforts of employment search firms, each Party shall not, during the Term of this Agreement and for one (1) year thereafter, directly or indirectly, solicit or hire any employee or independent contractor of the other Party, or induce any such person to abandon their relationship with the other Party.
5. No Warranty. THE CONFIDENTIAL INFORMATION IS PROVIDED “AS IS,” AND THE DISCLOSING PARTY HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES REGARDING THE ACCURACY, SUFFICIENCY, SUITABILITY OR NON-INFRINGEMENT OF SUCH CONFIDENTIAL INFORMATION.
6. No License or Obligations; Return of Confidential Information. This Agreement does not represent nor imply any agreement or commitment to enter into any further business relationship. This Agreement does not create any agency or partnership relationship between the Parties or authorize a Party to use the other Party’s name or trademarks. As between the Parties, all Confidential Information received by a Recipient shall remain the sole and exclusive property of the Disclosing Party. Upon written request by the Disclosing Party, the Recipient shall return to the Disclosing Party, or shall destroy in a manner satisfactory to the Disclosing Party, all tangible or electronic forms of Confidential Information, including any and all copies of the Confidential Information or notes containing the Confidential Information, and shall provide a written certification to the Disclosing Party that all tangible forms of the Confidential Information have been returned or destroyed.
7. Remedies for Breach. The Parties agree that money damages would be inadequate to remedy any breach of this Agreement. As a result, a non-breaching party shall be entitled to seek, and a court of competent jurisdiction may grant, specific performance and injunctive or other equitable relief as a remedy for any breach of this Agreement. Such remedy shall be in addition to all other remedies, including money damages, available to a non-breaching party at law or in equity.
8. Notices. Any notice given by one Party to the other under this Agreement shall be sent by registered mail, return receipt requested, or reputable overnight courier to the addresses listed below (or such address changed by the giving of like notice to the other Party), and shall be deemed received upon actual receipt by the recipient Party.
9. Governing Law; Attorneys’ Fees. This Agreement, including all matters of construction, validity and performance, shall be governed by, construed and enforced in accordance with the laws of the State of Washington, as applied to contracts made and to be fully performed in such state, without regard to its conflict of law rules. The Parties consent to the jurisdiction of the state and federal courts located in New York, New York. A prevailing Party shall be entitled to an award of its reasonable attorneys’ fees and costs arising out of this Agreement.
10. Miscellaneous. This Agreement sets forth the entire agreement between the Parties hereto with respect to its subject matter, and any and all prior agreements, understandings or representations with respect to its subject matter are merged herein. This Agreement may be amended and any provision may be waived only by the written agreement of the Parties. The terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective successors and assigns of the Parties, provided that Confidential Information of the Disclosing Party may not be assigned by the Recipient without the prior written consent of the Disclosing Party. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be effected, impaired or invalidated thereby. This Agreement may be executed in two or more counterparts or by other electronic means, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above.
PYRAMID BREWERIES INC., MAGIC HAT BREWING COMPANY & PERFORMING
ARTS CENTER, INC.,
a Washington corporation a Vermont corporation
By (signature): By (signature):
Printed Name: Printed Name:
Title: Title:
Address: 91 South Royal Brougham Way Address: 5 Bartlett Road
Seattle, WA 98134 South Burlington, VT 05403
Fax: Fax: (802) 658-5788
| Contradiction |
541_nda-18 | 541_nda-18_0 | Q: Receiving Party shall not solicit some of Disclosing Party's representatives.
Text: MUTUAL NON-DISCLOSURE AGREEMENT
THIS MUTUAL NON-DISCLOSURE AGREEMENT (the “Agreement”), effective April 3, 2008 (the “Effective Date”), is between Magic Hat Brewing Company & Performing Arts Center, Inc., a Vermont corporation (“Company”), and PYRAMID BREWERIES INC., a Washington corporation (“Pyramid”). Pyramid and the Company are sometimes referred to in this Agreement individually as a “Party” and collectively as the “Parties”.
WHEREAS, Pyramid is a reporting company with the Securities and Exchange Commission and files reports and proxy materials under the Securities Exchange Act of 1934, which are publicly available.
WHEREAS, the Parties wish to exchange certain nonpublic confidential business information for purposes of engaging in preliminary discussions regarding and evaluating a possible strategic merger, acquisition or business combination between the Parties (the “Business Purpose”).
NOW THEREFORE, the Parties agree as follows:
1. Definition of Confidential Information. The term “Confidential Information” means any and all information that is or has been received by either Party (the “Recipient”) from the other Party (the “Disclosing Party”), or which the Recipient has had access to, during the four (4)-month period commencing on the Effective Date (the “Term”), and that is either (a) marked as “confidential,” “proprietary,” or such similar term, or (b) non-public information related to the Disclosing Party’s business, which the Receiving Party should reasonably know is confidential based on the nature of such information. Without limiting the generality of the foregoing, Confidential Information shall include the following, whether in tangible or electronic form: business plans, customer database information, employee and independent contractor lists, internal reports and investigations, research and work in progress, source and object code, technical manuals, financial statements and projections, cost summaries and pricing formulae, algorithms, confidential filings with any international, federal or state agency, and all other information concerning methods of doing business, ideas and inventions (whether or not patentable), and data that derives independent economic value, actual or potential, from not being generally known to persons who can obtain economic value from its disclosure or use that is the subject of reasonable efforts by the Company to maintain its secrecy.
2. Excluded Information. Confidential Information shall not include any information that: (a) prior to its disclosure by the Disclosing Party is already lawfully and rightfully known by or available to the Recipient as evidenced by prior written records;
(b) through no wrongful act, fault or negligence on the part of the Recipient is or hereafter becomes part of the public domain; (c) is lawfully received by the Recipient from a third party without restriction and without breach of this agreement or any other agreement; (d) is approved for public release or use by written authorization of the Disclosing Party; (e) the Recipient can demonstrate was independently developed by it without reference to the Disclosing Party’s Confidential Information; or (f) is disclosed pursuant to the requirement or request of a governmental agency or court of competent jurisdiction to the extent such disclosure is required by a valid law, regulation or court order and sufficient notice is given by the Recipient to the Disclosing Party of any such requirement or request in order to permit the Disclosing Party to seek an appropriate protective order or exemption from such requirement or request.
3. Non-Disclosure and Confidentiality. The Recipient shall not (a) use the Confidential Information except for the Business Purpose, or (b) disclose or make the Confidential Information available to any person or entity (other than Related Parties, as defined below) without the prior written consent of the Disclosing Party. Each Party shall take reasonable security precautions to protect the Confidential Information, at least as strict as the precautions it takes to protect its own confidential and proprietary information of a similar nature. Without the prior written consent of the Disclosing Party, the Recipient of Confidential Information shall restrict the disclosure and availability of Confidential Information to Recipient’s financial, tax, or legal advisors, or to its directors, officers, or employees with a demonstrable need to know such Confidential Information (each, a “Related Party”, and, collectively, the “Related Parties”), provided that any such Related Party either agrees to be bound by this Agreement or is already bound by confidentiality obligations no less restrictive than those in this Agreement. Each Party shall be responsible for the breach of this Agreement by any Related Party. Neither Party shall use any Confidential Information received by it to develop a product or service which competes with or imitates products of the Disclosing Party or engage in reverse engineering to develop similar products or services using the Confidential Information (it being acknowledged and understood that both Parties are engaged in the business of beer brewing and that competing beer products are regularly independently developed within the beer industry using the same or similar raw materials, processes and packaging). The Recipient shall prevent commingling of the Confidential Information with similar information or material of other third parties. The obligations of confidentiality and protection under this Agreement shall survive for three (3) years following the expiration of the Term.
4. Non-Solicitation. Other than through general employment listings and advertising or through the efforts of employment search firms, each Party shall not, during the Term of this Agreement and for one (1) year thereafter, directly or indirectly, solicit or hire any employee or independent contractor of the other Party, or induce any such person to abandon their relationship with the other Party.
5. No Warranty. THE CONFIDENTIAL INFORMATION IS PROVIDED “AS IS,” AND THE DISCLOSING PARTY HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES REGARDING THE ACCURACY, SUFFICIENCY, SUITABILITY OR NON-INFRINGEMENT OF SUCH CONFIDENTIAL INFORMATION.
6. No License or Obligations; Return of Confidential Information. This Agreement does not represent nor imply any agreement or commitment to enter into any further business relationship. This Agreement does not create any agency or partnership relationship between the Parties or authorize a Party to use the other Party’s name or trademarks. As between the Parties, all Confidential Information received by a Recipient shall remain the sole and exclusive property of the Disclosing Party. Upon written request by the Disclosing Party, the Recipient shall return to the Disclosing Party, or shall destroy in a manner satisfactory to the Disclosing Party, all tangible or electronic forms of Confidential Information, including any and all copies of the Confidential Information or notes containing the Confidential Information, and shall provide a written certification to the Disclosing Party that all tangible forms of the Confidential Information have been returned or destroyed.
7. Remedies for Breach. The Parties agree that money damages would be inadequate to remedy any breach of this Agreement. As a result, a non-breaching party shall be entitled to seek, and a court of competent jurisdiction may grant, specific performance and injunctive or other equitable relief as a remedy for any breach of this Agreement. Such remedy shall be in addition to all other remedies, including money damages, available to a non-breaching party at law or in equity.
8. Notices. Any notice given by one Party to the other under this Agreement shall be sent by registered mail, return receipt requested, or reputable overnight courier to the addresses listed below (or such address changed by the giving of like notice to the other Party), and shall be deemed received upon actual receipt by the recipient Party.
9. Governing Law; Attorneys’ Fees. This Agreement, including all matters of construction, validity and performance, shall be governed by, construed and enforced in accordance with the laws of the State of Washington, as applied to contracts made and to be fully performed in such state, without regard to its conflict of law rules. The Parties consent to the jurisdiction of the state and federal courts located in New York, New York. A prevailing Party shall be entitled to an award of its reasonable attorneys’ fees and costs arising out of this Agreement.
10. Miscellaneous. This Agreement sets forth the entire agreement between the Parties hereto with respect to its subject matter, and any and all prior agreements, understandings or representations with respect to its subject matter are merged herein. This Agreement may be amended and any provision may be waived only by the written agreement of the Parties. The terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective successors and assigns of the Parties, provided that Confidential Information of the Disclosing Party may not be assigned by the Recipient without the prior written consent of the Disclosing Party. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be effected, impaired or invalidated thereby. This Agreement may be executed in two or more counterparts or by other electronic means, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above.
PYRAMID BREWERIES INC., MAGIC HAT BREWING COMPANY & PERFORMING
ARTS CENTER, INC.,
a Washington corporation a Vermont corporation
By (signature): By (signature):
Printed Name: Printed Name:
Title: Title:
Address: 91 South Royal Brougham Way Address: 5 Bartlett Road
Seattle, WA 98134 South Burlington, VT 05403
Fax: Fax: (802) 658-5788
| Entailment |
541_nda-7 | 541_nda-7_0 | Q: Receiving Party may share some Confidential Information with some third-parties (including consultants, agents and professional advisors).
Text: MUTUAL NON-DISCLOSURE AGREEMENT
THIS MUTUAL NON-DISCLOSURE AGREEMENT (the “Agreement”), effective April 3, 2008 (the “Effective Date”), is between Magic Hat Brewing Company & Performing Arts Center, Inc., a Vermont corporation (“Company”), and PYRAMID BREWERIES INC., a Washington corporation (“Pyramid”). Pyramid and the Company are sometimes referred to in this Agreement individually as a “Party” and collectively as the “Parties”.
WHEREAS, Pyramid is a reporting company with the Securities and Exchange Commission and files reports and proxy materials under the Securities Exchange Act of 1934, which are publicly available.
WHEREAS, the Parties wish to exchange certain nonpublic confidential business information for purposes of engaging in preliminary discussions regarding and evaluating a possible strategic merger, acquisition or business combination between the Parties (the “Business Purpose”).
NOW THEREFORE, the Parties agree as follows:
1. Definition of Confidential Information. The term “Confidential Information” means any and all information that is or has been received by either Party (the “Recipient”) from the other Party (the “Disclosing Party”), or which the Recipient has had access to, during the four (4)-month period commencing on the Effective Date (the “Term”), and that is either (a) marked as “confidential,” “proprietary,” or such similar term, or (b) non-public information related to the Disclosing Party’s business, which the Receiving Party should reasonably know is confidential based on the nature of such information. Without limiting the generality of the foregoing, Confidential Information shall include the following, whether in tangible or electronic form: business plans, customer database information, employee and independent contractor lists, internal reports and investigations, research and work in progress, source and object code, technical manuals, financial statements and projections, cost summaries and pricing formulae, algorithms, confidential filings with any international, federal or state agency, and all other information concerning methods of doing business, ideas and inventions (whether or not patentable), and data that derives independent economic value, actual or potential, from not being generally known to persons who can obtain economic value from its disclosure or use that is the subject of reasonable efforts by the Company to maintain its secrecy.
2. Excluded Information. Confidential Information shall not include any information that: (a) prior to its disclosure by the Disclosing Party is already lawfully and rightfully known by or available to the Recipient as evidenced by prior written records;
(b) through no wrongful act, fault or negligence on the part of the Recipient is or hereafter becomes part of the public domain; (c) is lawfully received by the Recipient from a third party without restriction and without breach of this agreement or any other agreement; (d) is approved for public release or use by written authorization of the Disclosing Party; (e) the Recipient can demonstrate was independently developed by it without reference to the Disclosing Party’s Confidential Information; or (f) is disclosed pursuant to the requirement or request of a governmental agency or court of competent jurisdiction to the extent such disclosure is required by a valid law, regulation or court order and sufficient notice is given by the Recipient to the Disclosing Party of any such requirement or request in order to permit the Disclosing Party to seek an appropriate protective order or exemption from such requirement or request.
3. Non-Disclosure and Confidentiality. The Recipient shall not (a) use the Confidential Information except for the Business Purpose, or (b) disclose or make the Confidential Information available to any person or entity (other than Related Parties, as defined below) without the prior written consent of the Disclosing Party. Each Party shall take reasonable security precautions to protect the Confidential Information, at least as strict as the precautions it takes to protect its own confidential and proprietary information of a similar nature. Without the prior written consent of the Disclosing Party, the Recipient of Confidential Information shall restrict the disclosure and availability of Confidential Information to Recipient’s financial, tax, or legal advisors, or to its directors, officers, or employees with a demonstrable need to know such Confidential Information (each, a “Related Party”, and, collectively, the “Related Parties”), provided that any such Related Party either agrees to be bound by this Agreement or is already bound by confidentiality obligations no less restrictive than those in this Agreement. Each Party shall be responsible for the breach of this Agreement by any Related Party. Neither Party shall use any Confidential Information received by it to develop a product or service which competes with or imitates products of the Disclosing Party or engage in reverse engineering to develop similar products or services using the Confidential Information (it being acknowledged and understood that both Parties are engaged in the business of beer brewing and that competing beer products are regularly independently developed within the beer industry using the same or similar raw materials, processes and packaging). The Recipient shall prevent commingling of the Confidential Information with similar information or material of other third parties. The obligations of confidentiality and protection under this Agreement shall survive for three (3) years following the expiration of the Term.
4. Non-Solicitation. Other than through general employment listings and advertising or through the efforts of employment search firms, each Party shall not, during the Term of this Agreement and for one (1) year thereafter, directly or indirectly, solicit or hire any employee or independent contractor of the other Party, or induce any such person to abandon their relationship with the other Party.
5. No Warranty. THE CONFIDENTIAL INFORMATION IS PROVIDED “AS IS,” AND THE DISCLOSING PARTY HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES REGARDING THE ACCURACY, SUFFICIENCY, SUITABILITY OR NON-INFRINGEMENT OF SUCH CONFIDENTIAL INFORMATION.
6. No License or Obligations; Return of Confidential Information. This Agreement does not represent nor imply any agreement or commitment to enter into any further business relationship. This Agreement does not create any agency or partnership relationship between the Parties or authorize a Party to use the other Party’s name or trademarks. As between the Parties, all Confidential Information received by a Recipient shall remain the sole and exclusive property of the Disclosing Party. Upon written request by the Disclosing Party, the Recipient shall return to the Disclosing Party, or shall destroy in a manner satisfactory to the Disclosing Party, all tangible or electronic forms of Confidential Information, including any and all copies of the Confidential Information or notes containing the Confidential Information, and shall provide a written certification to the Disclosing Party that all tangible forms of the Confidential Information have been returned or destroyed.
7. Remedies for Breach. The Parties agree that money damages would be inadequate to remedy any breach of this Agreement. As a result, a non-breaching party shall be entitled to seek, and a court of competent jurisdiction may grant, specific performance and injunctive or other equitable relief as a remedy for any breach of this Agreement. Such remedy shall be in addition to all other remedies, including money damages, available to a non-breaching party at law or in equity.
8. Notices. Any notice given by one Party to the other under this Agreement shall be sent by registered mail, return receipt requested, or reputable overnight courier to the addresses listed below (or such address changed by the giving of like notice to the other Party), and shall be deemed received upon actual receipt by the recipient Party.
9. Governing Law; Attorneys’ Fees. This Agreement, including all matters of construction, validity and performance, shall be governed by, construed and enforced in accordance with the laws of the State of Washington, as applied to contracts made and to be fully performed in such state, without regard to its conflict of law rules. The Parties consent to the jurisdiction of the state and federal courts located in New York, New York. A prevailing Party shall be entitled to an award of its reasonable attorneys’ fees and costs arising out of this Agreement.
10. Miscellaneous. This Agreement sets forth the entire agreement between the Parties hereto with respect to its subject matter, and any and all prior agreements, understandings or representations with respect to its subject matter are merged herein. This Agreement may be amended and any provision may be waived only by the written agreement of the Parties. The terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective successors and assigns of the Parties, provided that Confidential Information of the Disclosing Party may not be assigned by the Recipient without the prior written consent of the Disclosing Party. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be effected, impaired or invalidated thereby. This Agreement may be executed in two or more counterparts or by other electronic means, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above.
PYRAMID BREWERIES INC., MAGIC HAT BREWING COMPANY & PERFORMING
ARTS CENTER, INC.,
a Washington corporation a Vermont corporation
By (signature): By (signature):
Printed Name: Printed Name:
Title: Title:
Address: 91 South Royal Brougham Way Address: 5 Bartlett Road
Seattle, WA 98134 South Burlington, VT 05403
Fax: Fax: (802) 658-5788
| Entailment |
541_nda-17 | 541_nda-17_0 | Q: Receiving Party may create a copy of some Confidential Information in some circumstances.
Text: MUTUAL NON-DISCLOSURE AGREEMENT
THIS MUTUAL NON-DISCLOSURE AGREEMENT (the “Agreement”), effective April 3, 2008 (the “Effective Date”), is between Magic Hat Brewing Company & Performing Arts Center, Inc., a Vermont corporation (“Company”), and PYRAMID BREWERIES INC., a Washington corporation (“Pyramid”). Pyramid and the Company are sometimes referred to in this Agreement individually as a “Party” and collectively as the “Parties”.
WHEREAS, Pyramid is a reporting company with the Securities and Exchange Commission and files reports and proxy materials under the Securities Exchange Act of 1934, which are publicly available.
WHEREAS, the Parties wish to exchange certain nonpublic confidential business information for purposes of engaging in preliminary discussions regarding and evaluating a possible strategic merger, acquisition or business combination between the Parties (the “Business Purpose”).
NOW THEREFORE, the Parties agree as follows:
1. Definition of Confidential Information. The term “Confidential Information” means any and all information that is or has been received by either Party (the “Recipient”) from the other Party (the “Disclosing Party”), or which the Recipient has had access to, during the four (4)-month period commencing on the Effective Date (the “Term”), and that is either (a) marked as “confidential,” “proprietary,” or such similar term, or (b) non-public information related to the Disclosing Party’s business, which the Receiving Party should reasonably know is confidential based on the nature of such information. Without limiting the generality of the foregoing, Confidential Information shall include the following, whether in tangible or electronic form: business plans, customer database information, employee and independent contractor lists, internal reports and investigations, research and work in progress, source and object code, technical manuals, financial statements and projections, cost summaries and pricing formulae, algorithms, confidential filings with any international, federal or state agency, and all other information concerning methods of doing business, ideas and inventions (whether or not patentable), and data that derives independent economic value, actual or potential, from not being generally known to persons who can obtain economic value from its disclosure or use that is the subject of reasonable efforts by the Company to maintain its secrecy.
2. Excluded Information. Confidential Information shall not include any information that: (a) prior to its disclosure by the Disclosing Party is already lawfully and rightfully known by or available to the Recipient as evidenced by prior written records;
(b) through no wrongful act, fault or negligence on the part of the Recipient is or hereafter becomes part of the public domain; (c) is lawfully received by the Recipient from a third party without restriction and without breach of this agreement or any other agreement; (d) is approved for public release or use by written authorization of the Disclosing Party; (e) the Recipient can demonstrate was independently developed by it without reference to the Disclosing Party’s Confidential Information; or (f) is disclosed pursuant to the requirement or request of a governmental agency or court of competent jurisdiction to the extent such disclosure is required by a valid law, regulation or court order and sufficient notice is given by the Recipient to the Disclosing Party of any such requirement or request in order to permit the Disclosing Party to seek an appropriate protective order or exemption from such requirement or request.
3. Non-Disclosure and Confidentiality. The Recipient shall not (a) use the Confidential Information except for the Business Purpose, or (b) disclose or make the Confidential Information available to any person or entity (other than Related Parties, as defined below) without the prior written consent of the Disclosing Party. Each Party shall take reasonable security precautions to protect the Confidential Information, at least as strict as the precautions it takes to protect its own confidential and proprietary information of a similar nature. Without the prior written consent of the Disclosing Party, the Recipient of Confidential Information shall restrict the disclosure and availability of Confidential Information to Recipient’s financial, tax, or legal advisors, or to its directors, officers, or employees with a demonstrable need to know such Confidential Information (each, a “Related Party”, and, collectively, the “Related Parties”), provided that any such Related Party either agrees to be bound by this Agreement or is already bound by confidentiality obligations no less restrictive than those in this Agreement. Each Party shall be responsible for the breach of this Agreement by any Related Party. Neither Party shall use any Confidential Information received by it to develop a product or service which competes with or imitates products of the Disclosing Party or engage in reverse engineering to develop similar products or services using the Confidential Information (it being acknowledged and understood that both Parties are engaged in the business of beer brewing and that competing beer products are regularly independently developed within the beer industry using the same or similar raw materials, processes and packaging). The Recipient shall prevent commingling of the Confidential Information with similar information or material of other third parties. The obligations of confidentiality and protection under this Agreement shall survive for three (3) years following the expiration of the Term.
4. Non-Solicitation. Other than through general employment listings and advertising or through the efforts of employment search firms, each Party shall not, during the Term of this Agreement and for one (1) year thereafter, directly or indirectly, solicit or hire any employee or independent contractor of the other Party, or induce any such person to abandon their relationship with the other Party.
5. No Warranty. THE CONFIDENTIAL INFORMATION IS PROVIDED “AS IS,” AND THE DISCLOSING PARTY HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES REGARDING THE ACCURACY, SUFFICIENCY, SUITABILITY OR NON-INFRINGEMENT OF SUCH CONFIDENTIAL INFORMATION.
6. No License or Obligations; Return of Confidential Information. This Agreement does not represent nor imply any agreement or commitment to enter into any further business relationship. This Agreement does not create any agency or partnership relationship between the Parties or authorize a Party to use the other Party’s name or trademarks. As between the Parties, all Confidential Information received by a Recipient shall remain the sole and exclusive property of the Disclosing Party. Upon written request by the Disclosing Party, the Recipient shall return to the Disclosing Party, or shall destroy in a manner satisfactory to the Disclosing Party, all tangible or electronic forms of Confidential Information, including any and all copies of the Confidential Information or notes containing the Confidential Information, and shall provide a written certification to the Disclosing Party that all tangible forms of the Confidential Information have been returned or destroyed.
7. Remedies for Breach. The Parties agree that money damages would be inadequate to remedy any breach of this Agreement. As a result, a non-breaching party shall be entitled to seek, and a court of competent jurisdiction may grant, specific performance and injunctive or other equitable relief as a remedy for any breach of this Agreement. Such remedy shall be in addition to all other remedies, including money damages, available to a non-breaching party at law or in equity.
8. Notices. Any notice given by one Party to the other under this Agreement shall be sent by registered mail, return receipt requested, or reputable overnight courier to the addresses listed below (or such address changed by the giving of like notice to the other Party), and shall be deemed received upon actual receipt by the recipient Party.
9. Governing Law; Attorneys’ Fees. This Agreement, including all matters of construction, validity and performance, shall be governed by, construed and enforced in accordance with the laws of the State of Washington, as applied to contracts made and to be fully performed in such state, without regard to its conflict of law rules. The Parties consent to the jurisdiction of the state and federal courts located in New York, New York. A prevailing Party shall be entitled to an award of its reasonable attorneys’ fees and costs arising out of this Agreement.
10. Miscellaneous. This Agreement sets forth the entire agreement between the Parties hereto with respect to its subject matter, and any and all prior agreements, understandings or representations with respect to its subject matter are merged herein. This Agreement may be amended and any provision may be waived only by the written agreement of the Parties. The terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective successors and assigns of the Parties, provided that Confidential Information of the Disclosing Party may not be assigned by the Recipient without the prior written consent of the Disclosing Party. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be effected, impaired or invalidated thereby. This Agreement may be executed in two or more counterparts or by other electronic means, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above.
PYRAMID BREWERIES INC., MAGIC HAT BREWING COMPANY & PERFORMING
ARTS CENTER, INC.,
a Washington corporation a Vermont corporation
By (signature): By (signature):
Printed Name: Printed Name:
Title: Title:
Address: 91 South Royal Brougham Way Address: 5 Bartlett Road
Seattle, WA 98134 South Burlington, VT 05403
Fax: Fax: (802) 658-5788
| Not mentioned |
541_nda-8 | 541_nda-8_0 | Q: Receiving Party shall notify Disclosing Party in case Receiving Party is required by law, regulation or judicial process to disclose any Confidential Information.
Text: MUTUAL NON-DISCLOSURE AGREEMENT
THIS MUTUAL NON-DISCLOSURE AGREEMENT (the “Agreement”), effective April 3, 2008 (the “Effective Date”), is between Magic Hat Brewing Company & Performing Arts Center, Inc., a Vermont corporation (“Company”), and PYRAMID BREWERIES INC., a Washington corporation (“Pyramid”). Pyramid and the Company are sometimes referred to in this Agreement individually as a “Party” and collectively as the “Parties”.
WHEREAS, Pyramid is a reporting company with the Securities and Exchange Commission and files reports and proxy materials under the Securities Exchange Act of 1934, which are publicly available.
WHEREAS, the Parties wish to exchange certain nonpublic confidential business information for purposes of engaging in preliminary discussions regarding and evaluating a possible strategic merger, acquisition or business combination between the Parties (the “Business Purpose”).
NOW THEREFORE, the Parties agree as follows:
1. Definition of Confidential Information. The term “Confidential Information” means any and all information that is or has been received by either Party (the “Recipient”) from the other Party (the “Disclosing Party”), or which the Recipient has had access to, during the four (4)-month period commencing on the Effective Date (the “Term”), and that is either (a) marked as “confidential,” “proprietary,” or such similar term, or (b) non-public information related to the Disclosing Party’s business, which the Receiving Party should reasonably know is confidential based on the nature of such information. Without limiting the generality of the foregoing, Confidential Information shall include the following, whether in tangible or electronic form: business plans, customer database information, employee and independent contractor lists, internal reports and investigations, research and work in progress, source and object code, technical manuals, financial statements and projections, cost summaries and pricing formulae, algorithms, confidential filings with any international, federal or state agency, and all other information concerning methods of doing business, ideas and inventions (whether or not patentable), and data that derives independent economic value, actual or potential, from not being generally known to persons who can obtain economic value from its disclosure or use that is the subject of reasonable efforts by the Company to maintain its secrecy.
2. Excluded Information. Confidential Information shall not include any information that: (a) prior to its disclosure by the Disclosing Party is already lawfully and rightfully known by or available to the Recipient as evidenced by prior written records;
(b) through no wrongful act, fault or negligence on the part of the Recipient is or hereafter becomes part of the public domain; (c) is lawfully received by the Recipient from a third party without restriction and without breach of this agreement or any other agreement; (d) is approved for public release or use by written authorization of the Disclosing Party; (e) the Recipient can demonstrate was independently developed by it without reference to the Disclosing Party’s Confidential Information; or (f) is disclosed pursuant to the requirement or request of a governmental agency or court of competent jurisdiction to the extent such disclosure is required by a valid law, regulation or court order and sufficient notice is given by the Recipient to the Disclosing Party of any such requirement or request in order to permit the Disclosing Party to seek an appropriate protective order or exemption from such requirement or request.
3. Non-Disclosure and Confidentiality. The Recipient shall not (a) use the Confidential Information except for the Business Purpose, or (b) disclose or make the Confidential Information available to any person or entity (other than Related Parties, as defined below) without the prior written consent of the Disclosing Party. Each Party shall take reasonable security precautions to protect the Confidential Information, at least as strict as the precautions it takes to protect its own confidential and proprietary information of a similar nature. Without the prior written consent of the Disclosing Party, the Recipient of Confidential Information shall restrict the disclosure and availability of Confidential Information to Recipient’s financial, tax, or legal advisors, or to its directors, officers, or employees with a demonstrable need to know such Confidential Information (each, a “Related Party”, and, collectively, the “Related Parties”), provided that any such Related Party either agrees to be bound by this Agreement or is already bound by confidentiality obligations no less restrictive than those in this Agreement. Each Party shall be responsible for the breach of this Agreement by any Related Party. Neither Party shall use any Confidential Information received by it to develop a product or service which competes with or imitates products of the Disclosing Party or engage in reverse engineering to develop similar products or services using the Confidential Information (it being acknowledged and understood that both Parties are engaged in the business of beer brewing and that competing beer products are regularly independently developed within the beer industry using the same or similar raw materials, processes and packaging). The Recipient shall prevent commingling of the Confidential Information with similar information or material of other third parties. The obligations of confidentiality and protection under this Agreement shall survive for three (3) years following the expiration of the Term.
4. Non-Solicitation. Other than through general employment listings and advertising or through the efforts of employment search firms, each Party shall not, during the Term of this Agreement and for one (1) year thereafter, directly or indirectly, solicit or hire any employee or independent contractor of the other Party, or induce any such person to abandon their relationship with the other Party.
5. No Warranty. THE CONFIDENTIAL INFORMATION IS PROVIDED “AS IS,” AND THE DISCLOSING PARTY HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES REGARDING THE ACCURACY, SUFFICIENCY, SUITABILITY OR NON-INFRINGEMENT OF SUCH CONFIDENTIAL INFORMATION.
6. No License or Obligations; Return of Confidential Information. This Agreement does not represent nor imply any agreement or commitment to enter into any further business relationship. This Agreement does not create any agency or partnership relationship between the Parties or authorize a Party to use the other Party’s name or trademarks. As between the Parties, all Confidential Information received by a Recipient shall remain the sole and exclusive property of the Disclosing Party. Upon written request by the Disclosing Party, the Recipient shall return to the Disclosing Party, or shall destroy in a manner satisfactory to the Disclosing Party, all tangible or electronic forms of Confidential Information, including any and all copies of the Confidential Information or notes containing the Confidential Information, and shall provide a written certification to the Disclosing Party that all tangible forms of the Confidential Information have been returned or destroyed.
7. Remedies for Breach. The Parties agree that money damages would be inadequate to remedy any breach of this Agreement. As a result, a non-breaching party shall be entitled to seek, and a court of competent jurisdiction may grant, specific performance and injunctive or other equitable relief as a remedy for any breach of this Agreement. Such remedy shall be in addition to all other remedies, including money damages, available to a non-breaching party at law or in equity.
8. Notices. Any notice given by one Party to the other under this Agreement shall be sent by registered mail, return receipt requested, or reputable overnight courier to the addresses listed below (or such address changed by the giving of like notice to the other Party), and shall be deemed received upon actual receipt by the recipient Party.
9. Governing Law; Attorneys’ Fees. This Agreement, including all matters of construction, validity and performance, shall be governed by, construed and enforced in accordance with the laws of the State of Washington, as applied to contracts made and to be fully performed in such state, without regard to its conflict of law rules. The Parties consent to the jurisdiction of the state and federal courts located in New York, New York. A prevailing Party shall be entitled to an award of its reasonable attorneys’ fees and costs arising out of this Agreement.
10. Miscellaneous. This Agreement sets forth the entire agreement between the Parties hereto with respect to its subject matter, and any and all prior agreements, understandings or representations with respect to its subject matter are merged herein. This Agreement may be amended and any provision may be waived only by the written agreement of the Parties. The terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective successors and assigns of the Parties, provided that Confidential Information of the Disclosing Party may not be assigned by the Recipient without the prior written consent of the Disclosing Party. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be effected, impaired or invalidated thereby. This Agreement may be executed in two or more counterparts or by other electronic means, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above.
PYRAMID BREWERIES INC., MAGIC HAT BREWING COMPANY & PERFORMING
ARTS CENTER, INC.,
a Washington corporation a Vermont corporation
By (signature): By (signature):
Printed Name: Printed Name:
Title: Title:
Address: 91 South Royal Brougham Way Address: 5 Bartlett Road
Seattle, WA 98134 South Burlington, VT 05403
Fax: Fax: (802) 658-5788
| Entailment |
541_nda-13 | 541_nda-13_0 | Q: Receiving Party may acquire information similar to Confidential Information from a third party.
Text: MUTUAL NON-DISCLOSURE AGREEMENT
THIS MUTUAL NON-DISCLOSURE AGREEMENT (the “Agreement”), effective April 3, 2008 (the “Effective Date”), is between Magic Hat Brewing Company & Performing Arts Center, Inc., a Vermont corporation (“Company”), and PYRAMID BREWERIES INC., a Washington corporation (“Pyramid”). Pyramid and the Company are sometimes referred to in this Agreement individually as a “Party” and collectively as the “Parties”.
WHEREAS, Pyramid is a reporting company with the Securities and Exchange Commission and files reports and proxy materials under the Securities Exchange Act of 1934, which are publicly available.
WHEREAS, the Parties wish to exchange certain nonpublic confidential business information for purposes of engaging in preliminary discussions regarding and evaluating a possible strategic merger, acquisition or business combination between the Parties (the “Business Purpose”).
NOW THEREFORE, the Parties agree as follows:
1. Definition of Confidential Information. The term “Confidential Information” means any and all information that is or has been received by either Party (the “Recipient”) from the other Party (the “Disclosing Party”), or which the Recipient has had access to, during the four (4)-month period commencing on the Effective Date (the “Term”), and that is either (a) marked as “confidential,” “proprietary,” or such similar term, or (b) non-public information related to the Disclosing Party’s business, which the Receiving Party should reasonably know is confidential based on the nature of such information. Without limiting the generality of the foregoing, Confidential Information shall include the following, whether in tangible or electronic form: business plans, customer database information, employee and independent contractor lists, internal reports and investigations, research and work in progress, source and object code, technical manuals, financial statements and projections, cost summaries and pricing formulae, algorithms, confidential filings with any international, federal or state agency, and all other information concerning methods of doing business, ideas and inventions (whether or not patentable), and data that derives independent economic value, actual or potential, from not being generally known to persons who can obtain economic value from its disclosure or use that is the subject of reasonable efforts by the Company to maintain its secrecy.
2. Excluded Information. Confidential Information shall not include any information that: (a) prior to its disclosure by the Disclosing Party is already lawfully and rightfully known by or available to the Recipient as evidenced by prior written records;
(b) through no wrongful act, fault or negligence on the part of the Recipient is or hereafter becomes part of the public domain; (c) is lawfully received by the Recipient from a third party without restriction and without breach of this agreement or any other agreement; (d) is approved for public release or use by written authorization of the Disclosing Party; (e) the Recipient can demonstrate was independently developed by it without reference to the Disclosing Party’s Confidential Information; or (f) is disclosed pursuant to the requirement or request of a governmental agency or court of competent jurisdiction to the extent such disclosure is required by a valid law, regulation or court order and sufficient notice is given by the Recipient to the Disclosing Party of any such requirement or request in order to permit the Disclosing Party to seek an appropriate protective order or exemption from such requirement or request.
3. Non-Disclosure and Confidentiality. The Recipient shall not (a) use the Confidential Information except for the Business Purpose, or (b) disclose or make the Confidential Information available to any person or entity (other than Related Parties, as defined below) without the prior written consent of the Disclosing Party. Each Party shall take reasonable security precautions to protect the Confidential Information, at least as strict as the precautions it takes to protect its own confidential and proprietary information of a similar nature. Without the prior written consent of the Disclosing Party, the Recipient of Confidential Information shall restrict the disclosure and availability of Confidential Information to Recipient’s financial, tax, or legal advisors, or to its directors, officers, or employees with a demonstrable need to know such Confidential Information (each, a “Related Party”, and, collectively, the “Related Parties”), provided that any such Related Party either agrees to be bound by this Agreement or is already bound by confidentiality obligations no less restrictive than those in this Agreement. Each Party shall be responsible for the breach of this Agreement by any Related Party. Neither Party shall use any Confidential Information received by it to develop a product or service which competes with or imitates products of the Disclosing Party or engage in reverse engineering to develop similar products or services using the Confidential Information (it being acknowledged and understood that both Parties are engaged in the business of beer brewing and that competing beer products are regularly independently developed within the beer industry using the same or similar raw materials, processes and packaging). The Recipient shall prevent commingling of the Confidential Information with similar information or material of other third parties. The obligations of confidentiality and protection under this Agreement shall survive for three (3) years following the expiration of the Term.
4. Non-Solicitation. Other than through general employment listings and advertising or through the efforts of employment search firms, each Party shall not, during the Term of this Agreement and for one (1) year thereafter, directly or indirectly, solicit or hire any employee or independent contractor of the other Party, or induce any such person to abandon their relationship with the other Party.
5. No Warranty. THE CONFIDENTIAL INFORMATION IS PROVIDED “AS IS,” AND THE DISCLOSING PARTY HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES REGARDING THE ACCURACY, SUFFICIENCY, SUITABILITY OR NON-INFRINGEMENT OF SUCH CONFIDENTIAL INFORMATION.
6. No License or Obligations; Return of Confidential Information. This Agreement does not represent nor imply any agreement or commitment to enter into any further business relationship. This Agreement does not create any agency or partnership relationship between the Parties or authorize a Party to use the other Party’s name or trademarks. As between the Parties, all Confidential Information received by a Recipient shall remain the sole and exclusive property of the Disclosing Party. Upon written request by the Disclosing Party, the Recipient shall return to the Disclosing Party, or shall destroy in a manner satisfactory to the Disclosing Party, all tangible or electronic forms of Confidential Information, including any and all copies of the Confidential Information or notes containing the Confidential Information, and shall provide a written certification to the Disclosing Party that all tangible forms of the Confidential Information have been returned or destroyed.
7. Remedies for Breach. The Parties agree that money damages would be inadequate to remedy any breach of this Agreement. As a result, a non-breaching party shall be entitled to seek, and a court of competent jurisdiction may grant, specific performance and injunctive or other equitable relief as a remedy for any breach of this Agreement. Such remedy shall be in addition to all other remedies, including money damages, available to a non-breaching party at law or in equity.
8. Notices. Any notice given by one Party to the other under this Agreement shall be sent by registered mail, return receipt requested, or reputable overnight courier to the addresses listed below (or such address changed by the giving of like notice to the other Party), and shall be deemed received upon actual receipt by the recipient Party.
9. Governing Law; Attorneys’ Fees. This Agreement, including all matters of construction, validity and performance, shall be governed by, construed and enforced in accordance with the laws of the State of Washington, as applied to contracts made and to be fully performed in such state, without regard to its conflict of law rules. The Parties consent to the jurisdiction of the state and federal courts located in New York, New York. A prevailing Party shall be entitled to an award of its reasonable attorneys’ fees and costs arising out of this Agreement.
10. Miscellaneous. This Agreement sets forth the entire agreement between the Parties hereto with respect to its subject matter, and any and all prior agreements, understandings or representations with respect to its subject matter are merged herein. This Agreement may be amended and any provision may be waived only by the written agreement of the Parties. The terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective successors and assigns of the Parties, provided that Confidential Information of the Disclosing Party may not be assigned by the Recipient without the prior written consent of the Disclosing Party. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be effected, impaired or invalidated thereby. This Agreement may be executed in two or more counterparts or by other electronic means, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above.
PYRAMID BREWERIES INC., MAGIC HAT BREWING COMPANY & PERFORMING
ARTS CENTER, INC.,
a Washington corporation a Vermont corporation
By (signature): By (signature):
Printed Name: Printed Name:
Title: Title:
Address: 91 South Royal Brougham Way Address: 5 Bartlett Road
Seattle, WA 98134 South Burlington, VT 05403
Fax: Fax: (802) 658-5788
| Entailment |
541_nda-5 | 541_nda-5_0 | Q: Receiving Party may share some Confidential Information with some of Receiving Party's employees.
Text: MUTUAL NON-DISCLOSURE AGREEMENT
THIS MUTUAL NON-DISCLOSURE AGREEMENT (the “Agreement”), effective April 3, 2008 (the “Effective Date”), is between Magic Hat Brewing Company & Performing Arts Center, Inc., a Vermont corporation (“Company”), and PYRAMID BREWERIES INC., a Washington corporation (“Pyramid”). Pyramid and the Company are sometimes referred to in this Agreement individually as a “Party” and collectively as the “Parties”.
WHEREAS, Pyramid is a reporting company with the Securities and Exchange Commission and files reports and proxy materials under the Securities Exchange Act of 1934, which are publicly available.
WHEREAS, the Parties wish to exchange certain nonpublic confidential business information for purposes of engaging in preliminary discussions regarding and evaluating a possible strategic merger, acquisition or business combination between the Parties (the “Business Purpose”).
NOW THEREFORE, the Parties agree as follows:
1. Definition of Confidential Information. The term “Confidential Information” means any and all information that is or has been received by either Party (the “Recipient”) from the other Party (the “Disclosing Party”), or which the Recipient has had access to, during the four (4)-month period commencing on the Effective Date (the “Term”), and that is either (a) marked as “confidential,” “proprietary,” or such similar term, or (b) non-public information related to the Disclosing Party’s business, which the Receiving Party should reasonably know is confidential based on the nature of such information. Without limiting the generality of the foregoing, Confidential Information shall include the following, whether in tangible or electronic form: business plans, customer database information, employee and independent contractor lists, internal reports and investigations, research and work in progress, source and object code, technical manuals, financial statements and projections, cost summaries and pricing formulae, algorithms, confidential filings with any international, federal or state agency, and all other information concerning methods of doing business, ideas and inventions (whether or not patentable), and data that derives independent economic value, actual or potential, from not being generally known to persons who can obtain economic value from its disclosure or use that is the subject of reasonable efforts by the Company to maintain its secrecy.
2. Excluded Information. Confidential Information shall not include any information that: (a) prior to its disclosure by the Disclosing Party is already lawfully and rightfully known by or available to the Recipient as evidenced by prior written records;
(b) through no wrongful act, fault or negligence on the part of the Recipient is or hereafter becomes part of the public domain; (c) is lawfully received by the Recipient from a third party without restriction and without breach of this agreement or any other agreement; (d) is approved for public release or use by written authorization of the Disclosing Party; (e) the Recipient can demonstrate was independently developed by it without reference to the Disclosing Party’s Confidential Information; or (f) is disclosed pursuant to the requirement or request of a governmental agency or court of competent jurisdiction to the extent such disclosure is required by a valid law, regulation or court order and sufficient notice is given by the Recipient to the Disclosing Party of any such requirement or request in order to permit the Disclosing Party to seek an appropriate protective order or exemption from such requirement or request.
3. Non-Disclosure and Confidentiality. The Recipient shall not (a) use the Confidential Information except for the Business Purpose, or (b) disclose or make the Confidential Information available to any person or entity (other than Related Parties, as defined below) without the prior written consent of the Disclosing Party. Each Party shall take reasonable security precautions to protect the Confidential Information, at least as strict as the precautions it takes to protect its own confidential and proprietary information of a similar nature. Without the prior written consent of the Disclosing Party, the Recipient of Confidential Information shall restrict the disclosure and availability of Confidential Information to Recipient’s financial, tax, or legal advisors, or to its directors, officers, or employees with a demonstrable need to know such Confidential Information (each, a “Related Party”, and, collectively, the “Related Parties”), provided that any such Related Party either agrees to be bound by this Agreement or is already bound by confidentiality obligations no less restrictive than those in this Agreement. Each Party shall be responsible for the breach of this Agreement by any Related Party. Neither Party shall use any Confidential Information received by it to develop a product or service which competes with or imitates products of the Disclosing Party or engage in reverse engineering to develop similar products or services using the Confidential Information (it being acknowledged and understood that both Parties are engaged in the business of beer brewing and that competing beer products are regularly independently developed within the beer industry using the same or similar raw materials, processes and packaging). The Recipient shall prevent commingling of the Confidential Information with similar information or material of other third parties. The obligations of confidentiality and protection under this Agreement shall survive for three (3) years following the expiration of the Term.
4. Non-Solicitation. Other than through general employment listings and advertising or through the efforts of employment search firms, each Party shall not, during the Term of this Agreement and for one (1) year thereafter, directly or indirectly, solicit or hire any employee or independent contractor of the other Party, or induce any such person to abandon their relationship with the other Party.
5. No Warranty. THE CONFIDENTIAL INFORMATION IS PROVIDED “AS IS,” AND THE DISCLOSING PARTY HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES REGARDING THE ACCURACY, SUFFICIENCY, SUITABILITY OR NON-INFRINGEMENT OF SUCH CONFIDENTIAL INFORMATION.
6. No License or Obligations; Return of Confidential Information. This Agreement does not represent nor imply any agreement or commitment to enter into any further business relationship. This Agreement does not create any agency or partnership relationship between the Parties or authorize a Party to use the other Party’s name or trademarks. As between the Parties, all Confidential Information received by a Recipient shall remain the sole and exclusive property of the Disclosing Party. Upon written request by the Disclosing Party, the Recipient shall return to the Disclosing Party, or shall destroy in a manner satisfactory to the Disclosing Party, all tangible or electronic forms of Confidential Information, including any and all copies of the Confidential Information or notes containing the Confidential Information, and shall provide a written certification to the Disclosing Party that all tangible forms of the Confidential Information have been returned or destroyed.
7. Remedies for Breach. The Parties agree that money damages would be inadequate to remedy any breach of this Agreement. As a result, a non-breaching party shall be entitled to seek, and a court of competent jurisdiction may grant, specific performance and injunctive or other equitable relief as a remedy for any breach of this Agreement. Such remedy shall be in addition to all other remedies, including money damages, available to a non-breaching party at law or in equity.
8. Notices. Any notice given by one Party to the other under this Agreement shall be sent by registered mail, return receipt requested, or reputable overnight courier to the addresses listed below (or such address changed by the giving of like notice to the other Party), and shall be deemed received upon actual receipt by the recipient Party.
9. Governing Law; Attorneys’ Fees. This Agreement, including all matters of construction, validity and performance, shall be governed by, construed and enforced in accordance with the laws of the State of Washington, as applied to contracts made and to be fully performed in such state, without regard to its conflict of law rules. The Parties consent to the jurisdiction of the state and federal courts located in New York, New York. A prevailing Party shall be entitled to an award of its reasonable attorneys’ fees and costs arising out of this Agreement.
10. Miscellaneous. This Agreement sets forth the entire agreement between the Parties hereto with respect to its subject matter, and any and all prior agreements, understandings or representations with respect to its subject matter are merged herein. This Agreement may be amended and any provision may be waived only by the written agreement of the Parties. The terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective successors and assigns of the Parties, provided that Confidential Information of the Disclosing Party may not be assigned by the Recipient without the prior written consent of the Disclosing Party. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be effected, impaired or invalidated thereby. This Agreement may be executed in two or more counterparts or by other electronic means, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above.
PYRAMID BREWERIES INC., MAGIC HAT BREWING COMPANY & PERFORMING
ARTS CENTER, INC.,
a Washington corporation a Vermont corporation
By (signature): By (signature):
Printed Name: Printed Name:
Title: Title:
Address: 91 South Royal Brougham Way Address: 5 Bartlett Road
Seattle, WA 98134 South Burlington, VT 05403
Fax: Fax: (802) 658-5788
| Entailment |
541_nda-4 | 541_nda-4_0 | Q: Receiving Party shall not use any Confidential Information for any purpose other than the purposes stated in Agreement.
Text: MUTUAL NON-DISCLOSURE AGREEMENT
THIS MUTUAL NON-DISCLOSURE AGREEMENT (the “Agreement”), effective April 3, 2008 (the “Effective Date”), is between Magic Hat Brewing Company & Performing Arts Center, Inc., a Vermont corporation (“Company”), and PYRAMID BREWERIES INC., a Washington corporation (“Pyramid”). Pyramid and the Company are sometimes referred to in this Agreement individually as a “Party” and collectively as the “Parties”.
WHEREAS, Pyramid is a reporting company with the Securities and Exchange Commission and files reports and proxy materials under the Securities Exchange Act of 1934, which are publicly available.
WHEREAS, the Parties wish to exchange certain nonpublic confidential business information for purposes of engaging in preliminary discussions regarding and evaluating a possible strategic merger, acquisition or business combination between the Parties (the “Business Purpose”).
NOW THEREFORE, the Parties agree as follows:
1. Definition of Confidential Information. The term “Confidential Information” means any and all information that is or has been received by either Party (the “Recipient”) from the other Party (the “Disclosing Party”), or which the Recipient has had access to, during the four (4)-month period commencing on the Effective Date (the “Term”), and that is either (a) marked as “confidential,” “proprietary,” or such similar term, or (b) non-public information related to the Disclosing Party’s business, which the Receiving Party should reasonably know is confidential based on the nature of such information. Without limiting the generality of the foregoing, Confidential Information shall include the following, whether in tangible or electronic form: business plans, customer database information, employee and independent contractor lists, internal reports and investigations, research and work in progress, source and object code, technical manuals, financial statements and projections, cost summaries and pricing formulae, algorithms, confidential filings with any international, federal or state agency, and all other information concerning methods of doing business, ideas and inventions (whether or not patentable), and data that derives independent economic value, actual or potential, from not being generally known to persons who can obtain economic value from its disclosure or use that is the subject of reasonable efforts by the Company to maintain its secrecy.
2. Excluded Information. Confidential Information shall not include any information that: (a) prior to its disclosure by the Disclosing Party is already lawfully and rightfully known by or available to the Recipient as evidenced by prior written records;
(b) through no wrongful act, fault or negligence on the part of the Recipient is or hereafter becomes part of the public domain; (c) is lawfully received by the Recipient from a third party without restriction and without breach of this agreement or any other agreement; (d) is approved for public release or use by written authorization of the Disclosing Party; (e) the Recipient can demonstrate was independently developed by it without reference to the Disclosing Party’s Confidential Information; or (f) is disclosed pursuant to the requirement or request of a governmental agency or court of competent jurisdiction to the extent such disclosure is required by a valid law, regulation or court order and sufficient notice is given by the Recipient to the Disclosing Party of any such requirement or request in order to permit the Disclosing Party to seek an appropriate protective order or exemption from such requirement or request.
3. Non-Disclosure and Confidentiality. The Recipient shall not (a) use the Confidential Information except for the Business Purpose, or (b) disclose or make the Confidential Information available to any person or entity (other than Related Parties, as defined below) without the prior written consent of the Disclosing Party. Each Party shall take reasonable security precautions to protect the Confidential Information, at least as strict as the precautions it takes to protect its own confidential and proprietary information of a similar nature. Without the prior written consent of the Disclosing Party, the Recipient of Confidential Information shall restrict the disclosure and availability of Confidential Information to Recipient’s financial, tax, or legal advisors, or to its directors, officers, or employees with a demonstrable need to know such Confidential Information (each, a “Related Party”, and, collectively, the “Related Parties”), provided that any such Related Party either agrees to be bound by this Agreement or is already bound by confidentiality obligations no less restrictive than those in this Agreement. Each Party shall be responsible for the breach of this Agreement by any Related Party. Neither Party shall use any Confidential Information received by it to develop a product or service which competes with or imitates products of the Disclosing Party or engage in reverse engineering to develop similar products or services using the Confidential Information (it being acknowledged and understood that both Parties are engaged in the business of beer brewing and that competing beer products are regularly independently developed within the beer industry using the same or similar raw materials, processes and packaging). The Recipient shall prevent commingling of the Confidential Information with similar information or material of other third parties. The obligations of confidentiality and protection under this Agreement shall survive for three (3) years following the expiration of the Term.
4. Non-Solicitation. Other than through general employment listings and advertising or through the efforts of employment search firms, each Party shall not, during the Term of this Agreement and for one (1) year thereafter, directly or indirectly, solicit or hire any employee or independent contractor of the other Party, or induce any such person to abandon their relationship with the other Party.
5. No Warranty. THE CONFIDENTIAL INFORMATION IS PROVIDED “AS IS,” AND THE DISCLOSING PARTY HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES REGARDING THE ACCURACY, SUFFICIENCY, SUITABILITY OR NON-INFRINGEMENT OF SUCH CONFIDENTIAL INFORMATION.
6. No License or Obligations; Return of Confidential Information. This Agreement does not represent nor imply any agreement or commitment to enter into any further business relationship. This Agreement does not create any agency or partnership relationship between the Parties or authorize a Party to use the other Party’s name or trademarks. As between the Parties, all Confidential Information received by a Recipient shall remain the sole and exclusive property of the Disclosing Party. Upon written request by the Disclosing Party, the Recipient shall return to the Disclosing Party, or shall destroy in a manner satisfactory to the Disclosing Party, all tangible or electronic forms of Confidential Information, including any and all copies of the Confidential Information or notes containing the Confidential Information, and shall provide a written certification to the Disclosing Party that all tangible forms of the Confidential Information have been returned or destroyed.
7. Remedies for Breach. The Parties agree that money damages would be inadequate to remedy any breach of this Agreement. As a result, a non-breaching party shall be entitled to seek, and a court of competent jurisdiction may grant, specific performance and injunctive or other equitable relief as a remedy for any breach of this Agreement. Such remedy shall be in addition to all other remedies, including money damages, available to a non-breaching party at law or in equity.
8. Notices. Any notice given by one Party to the other under this Agreement shall be sent by registered mail, return receipt requested, or reputable overnight courier to the addresses listed below (or such address changed by the giving of like notice to the other Party), and shall be deemed received upon actual receipt by the recipient Party.
9. Governing Law; Attorneys’ Fees. This Agreement, including all matters of construction, validity and performance, shall be governed by, construed and enforced in accordance with the laws of the State of Washington, as applied to contracts made and to be fully performed in such state, without regard to its conflict of law rules. The Parties consent to the jurisdiction of the state and federal courts located in New York, New York. A prevailing Party shall be entitled to an award of its reasonable attorneys’ fees and costs arising out of this Agreement.
10. Miscellaneous. This Agreement sets forth the entire agreement between the Parties hereto with respect to its subject matter, and any and all prior agreements, understandings or representations with respect to its subject matter are merged herein. This Agreement may be amended and any provision may be waived only by the written agreement of the Parties. The terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective successors and assigns of the Parties, provided that Confidential Information of the Disclosing Party may not be assigned by the Recipient without the prior written consent of the Disclosing Party. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be effected, impaired or invalidated thereby. This Agreement may be executed in two or more counterparts or by other electronic means, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above.
PYRAMID BREWERIES INC., MAGIC HAT BREWING COMPANY & PERFORMING
ARTS CENTER, INC.,
a Washington corporation a Vermont corporation
By (signature): By (signature):
Printed Name: Printed Name:
Title: Title:
Address: 91 South Royal Brougham Way Address: 5 Bartlett Road
Seattle, WA 98134 South Burlington, VT 05403
Fax: Fax: (802) 658-5788
| Entailment |
545_nda-11 | 545_nda-11_0 | Q: Receiving Party shall not reverse engineer any objects which embody Disclosing Party's Confidential Information.
Text: Exhibit 10.22
NON-DISCLOSURE, NON-COMPETITION, AND NON-SOLICITATION AGREEMENT
This Non-Disclosure, Non-Competition, and Non-Solicitation Agreement (“Agreement”) is entered into effective as of April 1, 2004 (the “Effective Date”), by and between Level 3 Communications, LLC, a Delaware limited liability company (“Level 3” or the “Buyer”), on the one hand, and ICG Communications, Inc. (the “Parent”), a Delaware corporation, and ICG Telecom Group, Inc. (the “Company”), a Delaware corporation, and for and on behalf of any of their direct or indirect parents, subsidiaries, successors, or Affiliates (collectively referred to as “ICG” or the “Sellers”), on the other hand.
RECITALS
A. The Sellers are engaged in conducting a dial-up ISP business whereby the Sellers provide Internet access and other Internet-related services to Internet service providers and their customers.
B. The Buyer and Sellers are parties to an Asset Purchase Agreement (the “Purchase Agreement”) dated as of April 1, 2004, pursuant to which Level 3 is purchasing from Sellers certain of Sellers’ assets (the “Acquired Assets”) used or held for use by Sellers in conducting the Sellers’ dial-up ISP business whereby the Company provides dial-up Internet access to Internet service providers and their customers, excluding the Company’s direct Internet access and primary rate interface businesses (the “Business”), as more fully described therein. Contemporaneous with this Agreement, Buyer and Sellers are closing and consummating the principal transactions contemplated by the Purchase Agreement.
C. Sellers acknowledge that the Buyer would not enter into or close the Purchase Agreement without Sellers’ agreement to the terms and conditions of this Agreement, and the execution of this Agreement by Sellers is a condition precedent to the Buyer’s obligation to close under the Purchase Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the Buyer’s execution and delivery of the Purchase Agreement, the closing thereunder and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
ARTICLE 1 NON-DISCLOSURE, NON-COMPETITION AND NON-SOLICITATION
1.1 Non-Disclosure. Sellers shall not disclose or appropriate for their own use, or for the use of any third party, at any time, any trade secrets or confidential or proprietary information included in or related to the Acquired Assets or the Business as previously operated by Sellers, whether or not developed by Sellers including, without limitation, information pertaining to the customers, vendors, prices, profits, contract terms or operating procedures of Sellers relating to the Business or the Acquired Assets; provided, however, that Sellers may use any such trade secrets and confidential or proprietary information (a) if and to the extent used in their businesses other than the Business and (b) in connection with providing services pursuant to the Transition Services Agreement.
1.2 Non-Competition. For a period of three (3) years from and after the Effective Date (the “Restrictive Period”), Sellers shall not engage, directly or indirectly, through any other entity or with any person (whether as an owner, shareholder, partner, member, director, officer, employee, agent, investor, or otherwise), in any business activity which is in competition with the Business conducted by Buyer during the Restrictive Period. The foregoing restrictions shall, however, apply only for a one-year period from and after the Effective Date with respect to any successor of any Seller who is not engaged in the same type of business as the Business as of the Effective Date and shall not apply at all with respect to any successor, other than Sellers and any of their Affiliates as of the Effective Date, that is engaged in the same type of business as the Business. Because Sellers’ Business is nationwide, Sellers agree that they will not so compete anywhere in the United States (the “Territory”). Notwithstanding the foregoing, Sellers may, during the 60-day period following the Effective Date, provide services in the Business to those customers delineated on Schedule 1.02(c) of the Purchase Agreement, subject to and in accordance with Section 5.08 of the Purchase Agreement; provided such services shall be provided solely pursuant to the customer contracts listed on such Schedule 1.02(c) and the amount of such service shall not be materially greater than that provided to such customers by Sellers during the 60-day period prior to the Effective Date.
1.3 Non-Solicitation. During the Restrictive Period, without the prior written consent of the Buyer (which Buyer may withhold in the exercise of its sole, absolute, and arbitrary discretion), Sellers (including, without limitation, any successors) shall not induce or solicit, directly or indirectly, through any other entity or with any other person, (whether as an owner, shareholder, partner, member, director, officer, employee, agent, investor, or otherwise) any employee of the Buyer or its Affiliates who is involved in the managed modem business conducted by Buyer or any of its Affiliates, including, without limitation, the Business, to terminate the employee’s employment with the Buyer or any such Affiliate.
1.4 Remedies. Any breach of any of the covenants set forth in this Article 1 would result in irreparable damage to the Buyer. Consequently, and without limiting other remedies which may exist for a breach of this Agreement, the Buyer will have the right to enforce such covenants by obtaining a temporary restraining order, preliminary injunction, and permanent injunction restraining any violation hereof, pending or following a trial on the merits, without posting any bond and in addition to all other remedies available to the Buyer at law or in equity.
1.5 Reasonableness of Covenants. Sellers acknowledge and agree that the covenants contained in this Agreement are reasonable in all respects, including without limitation their duration and geographic scope. Sellers expressly waive any defenses as to the reasonableness of such covenants in any action between the parties to enforce this Agreement.
1.6 Certain Definitions. As used in this Agreement:
(a) “Affiliate” means, with respect to any Person, a Person that directly or indirectly, through one or more intermediaries, Controls, is Controlled by, or is under common Control with, such Person; provided that a Person will not be deemed to Control another Person if the only indicia of such Control is voting control of more than 10% but less than 20% of outstanding, publicly traded equity securities of such other Person.
(b) “Control” (including the terms “Controlled by” and “under common Control with”) means, as used with respect to any Person, possession, directly or indirectly or as a trustee or executor, of power to direct or cause the direction of management or policies of such Person (whether through ownership of voting securities, as trustee or executor, by agreement or otherwise).
(c) “Person” means an individual, corporation, partnership, limited liability company, joint venture, trust, unincorporated organization or other entity.
(d) Other terms used but not defined herein have the respective meanings given to such terms in the Purchase Agreement.
ARTICLE 2 MISCELLANEOUS
2.1 Validity. Sellers acknowledge that the Non-Disclosure, Non-Competition and Non-Solicitation covenants set forth in Article 1 are necessary to protect the Buyer from competing efforts and to insure that the Buyer receives the benefits for which it has paid by closing under the Purchase Agreement. If either the Non-Disclosure, Non-Competition or Non-Solicitation provisions contained in this Agreement are held by a court of competent jurisdiction to be unenforceable under applicable law with respect to duration or scope of the agreements, then the Non-Disclosure Agreement, Non-Competition Agreement or Non-Solicitation Agreement, as applicable, will be deemed unenforceable in such part or parts of the Territory for such lesser period of time and for such limited scope as is permissible under applicable law.
2.2 Waiver. The Buyer’s failure to enforce any provision of this Agreement will not in any way be construed as a waiver of any such provision or prevent the Buyer thereafter from enforcing each and every provision of this Agreement.
2.3 Applicable Law, Jurisdiction, and Venue. This Agreement shall be governed by, and construed in accordance with, the Laws of the State of Colorado applicable to agreements made and to be performed wholly within such jurisdiction. The parties hereby irrevocably and unconditionally consent to the exclusive jurisdiction of the courts of the State of Colorado and of the United States of America, in each case located in the County of Denver, for any litigation arising out of or relating to this Agreement, and further agree that service of any process, summons, notice or document by U.S. registered mail to its respective address set forth in this Agreement shall be effective service of process for any litigation brought against it in any such court. The parties hereby irrevocably and unconditionally waive any objection to the laying of venue of any litigation arising out of this Agreement in the courts of the State of Colorado or the United States of America, in each case, located in the County of Denver, and hereby further irrevocably and unconditionally waive and agree not to plead or claim in any such court that any such litigation brought in any such court has been brought in an inconvenient forum.
2.4 Attorney Fees. If any action at law or in equity is brought to enforce or interpret the terms of this Agreement, the prevailing party shall be entitled to its reasonable attorneys’ fees, costs, expert witness fees and all other disbursements in addition to any other relief to which it or he may be entitled.
2.5 Modification. This Agreement may not be amended or modified by the parties except by a written agreement executed by both parties.
2.6 Headings or Captions. Headings or captions contained in this Agreement have been inserted herein only as a matter of convenience and in no way define, limit, extend or describe the scope of this Agreement or the intent of any provision hereof.
2.7 Construction. Unless the context of this Agreement clearly requires otherwise: (i) references to the plural include the singular and vice versa; (ii) references to one gender include all genders; (iii) “including” is not limiting; (iv) “or” has the inclusive meaning represented by the phrase “and/or”; (v) the words “hereof”, “herein”, “hereby”, “hereunder” and similar terms in this Agreement refer to this Agreement as a whole and not to any particular provision of this Agreement; (vi) section and clause references are to this Agreement unless otherwise specified; (vii) reference to any agreement (including this Agreement), document or instrument means such agreement, document or instrument as amended or modified and in effect from time to time in accordance with the terms thereof and, if applicable, the terms hereof; and (vii) general or specific references to any Law mean such Law as amended, modified, codified or reenacted, in whole or in part, and in effect from time to time, unless the effect thereof is to reduce, limit or otherwise prejudicially affect any obligation or any right, power or remedy hereunder, in which case such amendment, modification, codification or reenactment will not, to the maximum extent permitted by Law, form part of this Agreement and is to be disregarded for purposes of the construction and interpretation hereof.
2.8 Counterparts. This Agreement may be executed by the parties on any number of separate counterparts, and all such counterparts so executed constitute one agreement binding on all the parties notwithstanding that all the parties are not signatories to the same counterpart.
2.9 Entire Agreement. This Agreement and the Purchase Agreement and the documents referred to therein constitute the entire agreement among the parties pertaining to the subject matter hereof and supersede all prior agreements, letters of intent, understandings, negotiations and discussions of the parties, whether oral or written.
2.10 Failure or Delay. No failure on the part of any party to exercise, and no delay in exercising, any right, power or privilege hereunder operates as a waiver thereof; nor does any single or partial exercise of any right, power or privilege hereunder preclude any other or further exercise thereof, or the exercise of any other right, power or privilege. No notice to or demand on any party in any case entitles such party to any other or further notice or demand in similar or other circumstances.
2.11 Notice. Any notice required or permitted to be given hereunder shall be sufficient if in writing and if hand delivered, sent by overnight courier, or sent by registered or certified mail, postage prepaid, addressed as follows:
If to the Buyer: Level 3 Communications, LLC
1025 Eldorado Blvd.
Broomfield, Colorado 80021
Attention: General Counsel
With a copy to: Otten, Johnson, Robinson, Neff & Ragonetti, P.C.
1600 U.S. Bank Tower
950 Seventeenth Street
Denver, Colorado 80202
Attention: Steven E. Segal, Esq.
If to Sellers: ICG Communications, Inc.
161 Inverness Drive West
Englewood, Colorado 80112
Attention: General Counsel
[Signatures on following page]
IN WITNESS WHEREOF, Sellers and the Buyer have executed this Agreement effective as of the date first written above.
ICG COMMUNICATIONS, INC.
By:
Name:
Title:
ICG TELECOM GROUP, INC.
By:
Name:
Title:
LEVEL 3 COMMUNICATIONS, LLC
By:
Name: Robert M. Yates
Title: Senior Vice President and
Assistant General Counsel
Signature Page to
| Not mentioned |
545_nda-16 | 545_nda-16_0 | Q: Receiving Party shall destroy or return some Confidential Information upon the termination of Agreement.
Text: Exhibit 10.22
NON-DISCLOSURE, NON-COMPETITION, AND NON-SOLICITATION AGREEMENT
This Non-Disclosure, Non-Competition, and Non-Solicitation Agreement (“Agreement”) is entered into effective as of April 1, 2004 (the “Effective Date”), by and between Level 3 Communications, LLC, a Delaware limited liability company (“Level 3” or the “Buyer”), on the one hand, and ICG Communications, Inc. (the “Parent”), a Delaware corporation, and ICG Telecom Group, Inc. (the “Company”), a Delaware corporation, and for and on behalf of any of their direct or indirect parents, subsidiaries, successors, or Affiliates (collectively referred to as “ICG” or the “Sellers”), on the other hand.
RECITALS
A. The Sellers are engaged in conducting a dial-up ISP business whereby the Sellers provide Internet access and other Internet-related services to Internet service providers and their customers.
B. The Buyer and Sellers are parties to an Asset Purchase Agreement (the “Purchase Agreement”) dated as of April 1, 2004, pursuant to which Level 3 is purchasing from Sellers certain of Sellers’ assets (the “Acquired Assets”) used or held for use by Sellers in conducting the Sellers’ dial-up ISP business whereby the Company provides dial-up Internet access to Internet service providers and their customers, excluding the Company’s direct Internet access and primary rate interface businesses (the “Business”), as more fully described therein. Contemporaneous with this Agreement, Buyer and Sellers are closing and consummating the principal transactions contemplated by the Purchase Agreement.
C. Sellers acknowledge that the Buyer would not enter into or close the Purchase Agreement without Sellers’ agreement to the terms and conditions of this Agreement, and the execution of this Agreement by Sellers is a condition precedent to the Buyer’s obligation to close under the Purchase Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the Buyer’s execution and delivery of the Purchase Agreement, the closing thereunder and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
ARTICLE 1 NON-DISCLOSURE, NON-COMPETITION AND NON-SOLICITATION
1.1 Non-Disclosure. Sellers shall not disclose or appropriate for their own use, or for the use of any third party, at any time, any trade secrets or confidential or proprietary information included in or related to the Acquired Assets or the Business as previously operated by Sellers, whether or not developed by Sellers including, without limitation, information pertaining to the customers, vendors, prices, profits, contract terms or operating procedures of Sellers relating to the Business or the Acquired Assets; provided, however, that Sellers may use any such trade secrets and confidential or proprietary information (a) if and to the extent used in their businesses other than the Business and (b) in connection with providing services pursuant to the Transition Services Agreement.
1.2 Non-Competition. For a period of three (3) years from and after the Effective Date (the “Restrictive Period”), Sellers shall not engage, directly or indirectly, through any other entity or with any person (whether as an owner, shareholder, partner, member, director, officer, employee, agent, investor, or otherwise), in any business activity which is in competition with the Business conducted by Buyer during the Restrictive Period. The foregoing restrictions shall, however, apply only for a one-year period from and after the Effective Date with respect to any successor of any Seller who is not engaged in the same type of business as the Business as of the Effective Date and shall not apply at all with respect to any successor, other than Sellers and any of their Affiliates as of the Effective Date, that is engaged in the same type of business as the Business. Because Sellers’ Business is nationwide, Sellers agree that they will not so compete anywhere in the United States (the “Territory”). Notwithstanding the foregoing, Sellers may, during the 60-day period following the Effective Date, provide services in the Business to those customers delineated on Schedule 1.02(c) of the Purchase Agreement, subject to and in accordance with Section 5.08 of the Purchase Agreement; provided such services shall be provided solely pursuant to the customer contracts listed on such Schedule 1.02(c) and the amount of such service shall not be materially greater than that provided to such customers by Sellers during the 60-day period prior to the Effective Date.
1.3 Non-Solicitation. During the Restrictive Period, without the prior written consent of the Buyer (which Buyer may withhold in the exercise of its sole, absolute, and arbitrary discretion), Sellers (including, without limitation, any successors) shall not induce or solicit, directly or indirectly, through any other entity or with any other person, (whether as an owner, shareholder, partner, member, director, officer, employee, agent, investor, or otherwise) any employee of the Buyer or its Affiliates who is involved in the managed modem business conducted by Buyer or any of its Affiliates, including, without limitation, the Business, to terminate the employee’s employment with the Buyer or any such Affiliate.
1.4 Remedies. Any breach of any of the covenants set forth in this Article 1 would result in irreparable damage to the Buyer. Consequently, and without limiting other remedies which may exist for a breach of this Agreement, the Buyer will have the right to enforce such covenants by obtaining a temporary restraining order, preliminary injunction, and permanent injunction restraining any violation hereof, pending or following a trial on the merits, without posting any bond and in addition to all other remedies available to the Buyer at law or in equity.
1.5 Reasonableness of Covenants. Sellers acknowledge and agree that the covenants contained in this Agreement are reasonable in all respects, including without limitation their duration and geographic scope. Sellers expressly waive any defenses as to the reasonableness of such covenants in any action between the parties to enforce this Agreement.
1.6 Certain Definitions. As used in this Agreement:
(a) “Affiliate” means, with respect to any Person, a Person that directly or indirectly, through one or more intermediaries, Controls, is Controlled by, or is under common Control with, such Person; provided that a Person will not be deemed to Control another Person if the only indicia of such Control is voting control of more than 10% but less than 20% of outstanding, publicly traded equity securities of such other Person.
(b) “Control” (including the terms “Controlled by” and “under common Control with”) means, as used with respect to any Person, possession, directly or indirectly or as a trustee or executor, of power to direct or cause the direction of management or policies of such Person (whether through ownership of voting securities, as trustee or executor, by agreement or otherwise).
(c) “Person” means an individual, corporation, partnership, limited liability company, joint venture, trust, unincorporated organization or other entity.
(d) Other terms used but not defined herein have the respective meanings given to such terms in the Purchase Agreement.
ARTICLE 2 MISCELLANEOUS
2.1 Validity. Sellers acknowledge that the Non-Disclosure, Non-Competition and Non-Solicitation covenants set forth in Article 1 are necessary to protect the Buyer from competing efforts and to insure that the Buyer receives the benefits for which it has paid by closing under the Purchase Agreement. If either the Non-Disclosure, Non-Competition or Non-Solicitation provisions contained in this Agreement are held by a court of competent jurisdiction to be unenforceable under applicable law with respect to duration or scope of the agreements, then the Non-Disclosure Agreement, Non-Competition Agreement or Non-Solicitation Agreement, as applicable, will be deemed unenforceable in such part or parts of the Territory for such lesser period of time and for such limited scope as is permissible under applicable law.
2.2 Waiver. The Buyer’s failure to enforce any provision of this Agreement will not in any way be construed as a waiver of any such provision or prevent the Buyer thereafter from enforcing each and every provision of this Agreement.
2.3 Applicable Law, Jurisdiction, and Venue. This Agreement shall be governed by, and construed in accordance with, the Laws of the State of Colorado applicable to agreements made and to be performed wholly within such jurisdiction. The parties hereby irrevocably and unconditionally consent to the exclusive jurisdiction of the courts of the State of Colorado and of the United States of America, in each case located in the County of Denver, for any litigation arising out of or relating to this Agreement, and further agree that service of any process, summons, notice or document by U.S. registered mail to its respective address set forth in this Agreement shall be effective service of process for any litigation brought against it in any such court. The parties hereby irrevocably and unconditionally waive any objection to the laying of venue of any litigation arising out of this Agreement in the courts of the State of Colorado or the United States of America, in each case, located in the County of Denver, and hereby further irrevocably and unconditionally waive and agree not to plead or claim in any such court that any such litigation brought in any such court has been brought in an inconvenient forum.
2.4 Attorney Fees. If any action at law or in equity is brought to enforce or interpret the terms of this Agreement, the prevailing party shall be entitled to its reasonable attorneys’ fees, costs, expert witness fees and all other disbursements in addition to any other relief to which it or he may be entitled.
2.5 Modification. This Agreement may not be amended or modified by the parties except by a written agreement executed by both parties.
2.6 Headings or Captions. Headings or captions contained in this Agreement have been inserted herein only as a matter of convenience and in no way define, limit, extend or describe the scope of this Agreement or the intent of any provision hereof.
2.7 Construction. Unless the context of this Agreement clearly requires otherwise: (i) references to the plural include the singular and vice versa; (ii) references to one gender include all genders; (iii) “including” is not limiting; (iv) “or” has the inclusive meaning represented by the phrase “and/or”; (v) the words “hereof”, “herein”, “hereby”, “hereunder” and similar terms in this Agreement refer to this Agreement as a whole and not to any particular provision of this Agreement; (vi) section and clause references are to this Agreement unless otherwise specified; (vii) reference to any agreement (including this Agreement), document or instrument means such agreement, document or instrument as amended or modified and in effect from time to time in accordance with the terms thereof and, if applicable, the terms hereof; and (vii) general or specific references to any Law mean such Law as amended, modified, codified or reenacted, in whole or in part, and in effect from time to time, unless the effect thereof is to reduce, limit or otherwise prejudicially affect any obligation or any right, power or remedy hereunder, in which case such amendment, modification, codification or reenactment will not, to the maximum extent permitted by Law, form part of this Agreement and is to be disregarded for purposes of the construction and interpretation hereof.
2.8 Counterparts. This Agreement may be executed by the parties on any number of separate counterparts, and all such counterparts so executed constitute one agreement binding on all the parties notwithstanding that all the parties are not signatories to the same counterpart.
2.9 Entire Agreement. This Agreement and the Purchase Agreement and the documents referred to therein constitute the entire agreement among the parties pertaining to the subject matter hereof and supersede all prior agreements, letters of intent, understandings, negotiations and discussions of the parties, whether oral or written.
2.10 Failure or Delay. No failure on the part of any party to exercise, and no delay in exercising, any right, power or privilege hereunder operates as a waiver thereof; nor does any single or partial exercise of any right, power or privilege hereunder preclude any other or further exercise thereof, or the exercise of any other right, power or privilege. No notice to or demand on any party in any case entitles such party to any other or further notice or demand in similar or other circumstances.
2.11 Notice. Any notice required or permitted to be given hereunder shall be sufficient if in writing and if hand delivered, sent by overnight courier, or sent by registered or certified mail, postage prepaid, addressed as follows:
If to the Buyer: Level 3 Communications, LLC
1025 Eldorado Blvd.
Broomfield, Colorado 80021
Attention: General Counsel
With a copy to: Otten, Johnson, Robinson, Neff & Ragonetti, P.C.
1600 U.S. Bank Tower
950 Seventeenth Street
Denver, Colorado 80202
Attention: Steven E. Segal, Esq.
If to Sellers: ICG Communications, Inc.
161 Inverness Drive West
Englewood, Colorado 80112
Attention: General Counsel
[Signatures on following page]
IN WITNESS WHEREOF, Sellers and the Buyer have executed this Agreement effective as of the date first written above.
ICG COMMUNICATIONS, INC.
By:
Name:
Title:
ICG TELECOM GROUP, INC.
By:
Name:
Title:
LEVEL 3 COMMUNICATIONS, LLC
By:
Name: Robert M. Yates
Title: Senior Vice President and
Assistant General Counsel
Signature Page to
| Not mentioned |
545_nda-15 | 545_nda-15_0 | Q: Agreement shall not grant Receiving Party any right to Confidential Information.
Text: Exhibit 10.22
NON-DISCLOSURE, NON-COMPETITION, AND NON-SOLICITATION AGREEMENT
This Non-Disclosure, Non-Competition, and Non-Solicitation Agreement (“Agreement”) is entered into effective as of April 1, 2004 (the “Effective Date”), by and between Level 3 Communications, LLC, a Delaware limited liability company (“Level 3” or the “Buyer”), on the one hand, and ICG Communications, Inc. (the “Parent”), a Delaware corporation, and ICG Telecom Group, Inc. (the “Company”), a Delaware corporation, and for and on behalf of any of their direct or indirect parents, subsidiaries, successors, or Affiliates (collectively referred to as “ICG” or the “Sellers”), on the other hand.
RECITALS
A. The Sellers are engaged in conducting a dial-up ISP business whereby the Sellers provide Internet access and other Internet-related services to Internet service providers and their customers.
B. The Buyer and Sellers are parties to an Asset Purchase Agreement (the “Purchase Agreement”) dated as of April 1, 2004, pursuant to which Level 3 is purchasing from Sellers certain of Sellers’ assets (the “Acquired Assets”) used or held for use by Sellers in conducting the Sellers’ dial-up ISP business whereby the Company provides dial-up Internet access to Internet service providers and their customers, excluding the Company’s direct Internet access and primary rate interface businesses (the “Business”), as more fully described therein. Contemporaneous with this Agreement, Buyer and Sellers are closing and consummating the principal transactions contemplated by the Purchase Agreement.
C. Sellers acknowledge that the Buyer would not enter into or close the Purchase Agreement without Sellers’ agreement to the terms and conditions of this Agreement, and the execution of this Agreement by Sellers is a condition precedent to the Buyer’s obligation to close under the Purchase Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the Buyer’s execution and delivery of the Purchase Agreement, the closing thereunder and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
ARTICLE 1 NON-DISCLOSURE, NON-COMPETITION AND NON-SOLICITATION
1.1 Non-Disclosure. Sellers shall not disclose or appropriate for their own use, or for the use of any third party, at any time, any trade secrets or confidential or proprietary information included in or related to the Acquired Assets or the Business as previously operated by Sellers, whether or not developed by Sellers including, without limitation, information pertaining to the customers, vendors, prices, profits, contract terms or operating procedures of Sellers relating to the Business or the Acquired Assets; provided, however, that Sellers may use any such trade secrets and confidential or proprietary information (a) if and to the extent used in their businesses other than the Business and (b) in connection with providing services pursuant to the Transition Services Agreement.
1.2 Non-Competition. For a period of three (3) years from and after the Effective Date (the “Restrictive Period”), Sellers shall not engage, directly or indirectly, through any other entity or with any person (whether as an owner, shareholder, partner, member, director, officer, employee, agent, investor, or otherwise), in any business activity which is in competition with the Business conducted by Buyer during the Restrictive Period. The foregoing restrictions shall, however, apply only for a one-year period from and after the Effective Date with respect to any successor of any Seller who is not engaged in the same type of business as the Business as of the Effective Date and shall not apply at all with respect to any successor, other than Sellers and any of their Affiliates as of the Effective Date, that is engaged in the same type of business as the Business. Because Sellers’ Business is nationwide, Sellers agree that they will not so compete anywhere in the United States (the “Territory”). Notwithstanding the foregoing, Sellers may, during the 60-day period following the Effective Date, provide services in the Business to those customers delineated on Schedule 1.02(c) of the Purchase Agreement, subject to and in accordance with Section 5.08 of the Purchase Agreement; provided such services shall be provided solely pursuant to the customer contracts listed on such Schedule 1.02(c) and the amount of such service shall not be materially greater than that provided to such customers by Sellers during the 60-day period prior to the Effective Date.
1.3 Non-Solicitation. During the Restrictive Period, without the prior written consent of the Buyer (which Buyer may withhold in the exercise of its sole, absolute, and arbitrary discretion), Sellers (including, without limitation, any successors) shall not induce or solicit, directly or indirectly, through any other entity or with any other person, (whether as an owner, shareholder, partner, member, director, officer, employee, agent, investor, or otherwise) any employee of the Buyer or its Affiliates who is involved in the managed modem business conducted by Buyer or any of its Affiliates, including, without limitation, the Business, to terminate the employee’s employment with the Buyer or any such Affiliate.
1.4 Remedies. Any breach of any of the covenants set forth in this Article 1 would result in irreparable damage to the Buyer. Consequently, and without limiting other remedies which may exist for a breach of this Agreement, the Buyer will have the right to enforce such covenants by obtaining a temporary restraining order, preliminary injunction, and permanent injunction restraining any violation hereof, pending or following a trial on the merits, without posting any bond and in addition to all other remedies available to the Buyer at law or in equity.
1.5 Reasonableness of Covenants. Sellers acknowledge and agree that the covenants contained in this Agreement are reasonable in all respects, including without limitation their duration and geographic scope. Sellers expressly waive any defenses as to the reasonableness of such covenants in any action between the parties to enforce this Agreement.
1.6 Certain Definitions. As used in this Agreement:
(a) “Affiliate” means, with respect to any Person, a Person that directly or indirectly, through one or more intermediaries, Controls, is Controlled by, or is under common Control with, such Person; provided that a Person will not be deemed to Control another Person if the only indicia of such Control is voting control of more than 10% but less than 20% of outstanding, publicly traded equity securities of such other Person.
(b) “Control” (including the terms “Controlled by” and “under common Control with”) means, as used with respect to any Person, possession, directly or indirectly or as a trustee or executor, of power to direct or cause the direction of management or policies of such Person (whether through ownership of voting securities, as trustee or executor, by agreement or otherwise).
(c) “Person” means an individual, corporation, partnership, limited liability company, joint venture, trust, unincorporated organization or other entity.
(d) Other terms used but not defined herein have the respective meanings given to such terms in the Purchase Agreement.
ARTICLE 2 MISCELLANEOUS
2.1 Validity. Sellers acknowledge that the Non-Disclosure, Non-Competition and Non-Solicitation covenants set forth in Article 1 are necessary to protect the Buyer from competing efforts and to insure that the Buyer receives the benefits for which it has paid by closing under the Purchase Agreement. If either the Non-Disclosure, Non-Competition or Non-Solicitation provisions contained in this Agreement are held by a court of competent jurisdiction to be unenforceable under applicable law with respect to duration or scope of the agreements, then the Non-Disclosure Agreement, Non-Competition Agreement or Non-Solicitation Agreement, as applicable, will be deemed unenforceable in such part or parts of the Territory for such lesser period of time and for such limited scope as is permissible under applicable law.
2.2 Waiver. The Buyer’s failure to enforce any provision of this Agreement will not in any way be construed as a waiver of any such provision or prevent the Buyer thereafter from enforcing each and every provision of this Agreement.
2.3 Applicable Law, Jurisdiction, and Venue. This Agreement shall be governed by, and construed in accordance with, the Laws of the State of Colorado applicable to agreements made and to be performed wholly within such jurisdiction. The parties hereby irrevocably and unconditionally consent to the exclusive jurisdiction of the courts of the State of Colorado and of the United States of America, in each case located in the County of Denver, for any litigation arising out of or relating to this Agreement, and further agree that service of any process, summons, notice or document by U.S. registered mail to its respective address set forth in this Agreement shall be effective service of process for any litigation brought against it in any such court. The parties hereby irrevocably and unconditionally waive any objection to the laying of venue of any litigation arising out of this Agreement in the courts of the State of Colorado or the United States of America, in each case, located in the County of Denver, and hereby further irrevocably and unconditionally waive and agree not to plead or claim in any such court that any such litigation brought in any such court has been brought in an inconvenient forum.
2.4 Attorney Fees. If any action at law or in equity is brought to enforce or interpret the terms of this Agreement, the prevailing party shall be entitled to its reasonable attorneys’ fees, costs, expert witness fees and all other disbursements in addition to any other relief to which it or he may be entitled.
2.5 Modification. This Agreement may not be amended or modified by the parties except by a written agreement executed by both parties.
2.6 Headings or Captions. Headings or captions contained in this Agreement have been inserted herein only as a matter of convenience and in no way define, limit, extend or describe the scope of this Agreement or the intent of any provision hereof.
2.7 Construction. Unless the context of this Agreement clearly requires otherwise: (i) references to the plural include the singular and vice versa; (ii) references to one gender include all genders; (iii) “including” is not limiting; (iv) “or” has the inclusive meaning represented by the phrase “and/or”; (v) the words “hereof”, “herein”, “hereby”, “hereunder” and similar terms in this Agreement refer to this Agreement as a whole and not to any particular provision of this Agreement; (vi) section and clause references are to this Agreement unless otherwise specified; (vii) reference to any agreement (including this Agreement), document or instrument means such agreement, document or instrument as amended or modified and in effect from time to time in accordance with the terms thereof and, if applicable, the terms hereof; and (vii) general or specific references to any Law mean such Law as amended, modified, codified or reenacted, in whole or in part, and in effect from time to time, unless the effect thereof is to reduce, limit or otherwise prejudicially affect any obligation or any right, power or remedy hereunder, in which case such amendment, modification, codification or reenactment will not, to the maximum extent permitted by Law, form part of this Agreement and is to be disregarded for purposes of the construction and interpretation hereof.
2.8 Counterparts. This Agreement may be executed by the parties on any number of separate counterparts, and all such counterparts so executed constitute one agreement binding on all the parties notwithstanding that all the parties are not signatories to the same counterpart.
2.9 Entire Agreement. This Agreement and the Purchase Agreement and the documents referred to therein constitute the entire agreement among the parties pertaining to the subject matter hereof and supersede all prior agreements, letters of intent, understandings, negotiations and discussions of the parties, whether oral or written.
2.10 Failure or Delay. No failure on the part of any party to exercise, and no delay in exercising, any right, power or privilege hereunder operates as a waiver thereof; nor does any single or partial exercise of any right, power or privilege hereunder preclude any other or further exercise thereof, or the exercise of any other right, power or privilege. No notice to or demand on any party in any case entitles such party to any other or further notice or demand in similar or other circumstances.
2.11 Notice. Any notice required or permitted to be given hereunder shall be sufficient if in writing and if hand delivered, sent by overnight courier, or sent by registered or certified mail, postage prepaid, addressed as follows:
If to the Buyer: Level 3 Communications, LLC
1025 Eldorado Blvd.
Broomfield, Colorado 80021
Attention: General Counsel
With a copy to: Otten, Johnson, Robinson, Neff & Ragonetti, P.C.
1600 U.S. Bank Tower
950 Seventeenth Street
Denver, Colorado 80202
Attention: Steven E. Segal, Esq.
If to Sellers: ICG Communications, Inc.
161 Inverness Drive West
Englewood, Colorado 80112
Attention: General Counsel
[Signatures on following page]
IN WITNESS WHEREOF, Sellers and the Buyer have executed this Agreement effective as of the date first written above.
ICG COMMUNICATIONS, INC.
By:
Name:
Title:
ICG TELECOM GROUP, INC.
By:
Name:
Title:
LEVEL 3 COMMUNICATIONS, LLC
By:
Name: Robert M. Yates
Title: Senior Vice President and
Assistant General Counsel
Signature Page to
| Not mentioned |
545_nda-10 | 545_nda-10_0 | Q: Receiving Party shall not disclose the fact that Agreement was agreed or negotiated.
Text: Exhibit 10.22
NON-DISCLOSURE, NON-COMPETITION, AND NON-SOLICITATION AGREEMENT
This Non-Disclosure, Non-Competition, and Non-Solicitation Agreement (“Agreement”) is entered into effective as of April 1, 2004 (the “Effective Date”), by and between Level 3 Communications, LLC, a Delaware limited liability company (“Level 3” or the “Buyer”), on the one hand, and ICG Communications, Inc. (the “Parent”), a Delaware corporation, and ICG Telecom Group, Inc. (the “Company”), a Delaware corporation, and for and on behalf of any of their direct or indirect parents, subsidiaries, successors, or Affiliates (collectively referred to as “ICG” or the “Sellers”), on the other hand.
RECITALS
A. The Sellers are engaged in conducting a dial-up ISP business whereby the Sellers provide Internet access and other Internet-related services to Internet service providers and their customers.
B. The Buyer and Sellers are parties to an Asset Purchase Agreement (the “Purchase Agreement”) dated as of April 1, 2004, pursuant to which Level 3 is purchasing from Sellers certain of Sellers’ assets (the “Acquired Assets”) used or held for use by Sellers in conducting the Sellers’ dial-up ISP business whereby the Company provides dial-up Internet access to Internet service providers and their customers, excluding the Company’s direct Internet access and primary rate interface businesses (the “Business”), as more fully described therein. Contemporaneous with this Agreement, Buyer and Sellers are closing and consummating the principal transactions contemplated by the Purchase Agreement.
C. Sellers acknowledge that the Buyer would not enter into or close the Purchase Agreement without Sellers’ agreement to the terms and conditions of this Agreement, and the execution of this Agreement by Sellers is a condition precedent to the Buyer’s obligation to close under the Purchase Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the Buyer’s execution and delivery of the Purchase Agreement, the closing thereunder and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
ARTICLE 1 NON-DISCLOSURE, NON-COMPETITION AND NON-SOLICITATION
1.1 Non-Disclosure. Sellers shall not disclose or appropriate for their own use, or for the use of any third party, at any time, any trade secrets or confidential or proprietary information included in or related to the Acquired Assets or the Business as previously operated by Sellers, whether or not developed by Sellers including, without limitation, information pertaining to the customers, vendors, prices, profits, contract terms or operating procedures of Sellers relating to the Business or the Acquired Assets; provided, however, that Sellers may use any such trade secrets and confidential or proprietary information (a) if and to the extent used in their businesses other than the Business and (b) in connection with providing services pursuant to the Transition Services Agreement.
1.2 Non-Competition. For a period of three (3) years from and after the Effective Date (the “Restrictive Period”), Sellers shall not engage, directly or indirectly, through any other entity or with any person (whether as an owner, shareholder, partner, member, director, officer, employee, agent, investor, or otherwise), in any business activity which is in competition with the Business conducted by Buyer during the Restrictive Period. The foregoing restrictions shall, however, apply only for a one-year period from and after the Effective Date with respect to any successor of any Seller who is not engaged in the same type of business as the Business as of the Effective Date and shall not apply at all with respect to any successor, other than Sellers and any of their Affiliates as of the Effective Date, that is engaged in the same type of business as the Business. Because Sellers’ Business is nationwide, Sellers agree that they will not so compete anywhere in the United States (the “Territory”). Notwithstanding the foregoing, Sellers may, during the 60-day period following the Effective Date, provide services in the Business to those customers delineated on Schedule 1.02(c) of the Purchase Agreement, subject to and in accordance with Section 5.08 of the Purchase Agreement; provided such services shall be provided solely pursuant to the customer contracts listed on such Schedule 1.02(c) and the amount of such service shall not be materially greater than that provided to such customers by Sellers during the 60-day period prior to the Effective Date.
1.3 Non-Solicitation. During the Restrictive Period, without the prior written consent of the Buyer (which Buyer may withhold in the exercise of its sole, absolute, and arbitrary discretion), Sellers (including, without limitation, any successors) shall not induce or solicit, directly or indirectly, through any other entity or with any other person, (whether as an owner, shareholder, partner, member, director, officer, employee, agent, investor, or otherwise) any employee of the Buyer or its Affiliates who is involved in the managed modem business conducted by Buyer or any of its Affiliates, including, without limitation, the Business, to terminate the employee’s employment with the Buyer or any such Affiliate.
1.4 Remedies. Any breach of any of the covenants set forth in this Article 1 would result in irreparable damage to the Buyer. Consequently, and without limiting other remedies which may exist for a breach of this Agreement, the Buyer will have the right to enforce such covenants by obtaining a temporary restraining order, preliminary injunction, and permanent injunction restraining any violation hereof, pending or following a trial on the merits, without posting any bond and in addition to all other remedies available to the Buyer at law or in equity.
1.5 Reasonableness of Covenants. Sellers acknowledge and agree that the covenants contained in this Agreement are reasonable in all respects, including without limitation their duration and geographic scope. Sellers expressly waive any defenses as to the reasonableness of such covenants in any action between the parties to enforce this Agreement.
1.6 Certain Definitions. As used in this Agreement:
(a) “Affiliate” means, with respect to any Person, a Person that directly or indirectly, through one or more intermediaries, Controls, is Controlled by, or is under common Control with, such Person; provided that a Person will not be deemed to Control another Person if the only indicia of such Control is voting control of more than 10% but less than 20% of outstanding, publicly traded equity securities of such other Person.
(b) “Control” (including the terms “Controlled by” and “under common Control with”) means, as used with respect to any Person, possession, directly or indirectly or as a trustee or executor, of power to direct or cause the direction of management or policies of such Person (whether through ownership of voting securities, as trustee or executor, by agreement or otherwise).
(c) “Person” means an individual, corporation, partnership, limited liability company, joint venture, trust, unincorporated organization or other entity.
(d) Other terms used but not defined herein have the respective meanings given to such terms in the Purchase Agreement.
ARTICLE 2 MISCELLANEOUS
2.1 Validity. Sellers acknowledge that the Non-Disclosure, Non-Competition and Non-Solicitation covenants set forth in Article 1 are necessary to protect the Buyer from competing efforts and to insure that the Buyer receives the benefits for which it has paid by closing under the Purchase Agreement. If either the Non-Disclosure, Non-Competition or Non-Solicitation provisions contained in this Agreement are held by a court of competent jurisdiction to be unenforceable under applicable law with respect to duration or scope of the agreements, then the Non-Disclosure Agreement, Non-Competition Agreement or Non-Solicitation Agreement, as applicable, will be deemed unenforceable in such part or parts of the Territory for such lesser period of time and for such limited scope as is permissible under applicable law.
2.2 Waiver. The Buyer’s failure to enforce any provision of this Agreement will not in any way be construed as a waiver of any such provision or prevent the Buyer thereafter from enforcing each and every provision of this Agreement.
2.3 Applicable Law, Jurisdiction, and Venue. This Agreement shall be governed by, and construed in accordance with, the Laws of the State of Colorado applicable to agreements made and to be performed wholly within such jurisdiction. The parties hereby irrevocably and unconditionally consent to the exclusive jurisdiction of the courts of the State of Colorado and of the United States of America, in each case located in the County of Denver, for any litigation arising out of or relating to this Agreement, and further agree that service of any process, summons, notice or document by U.S. registered mail to its respective address set forth in this Agreement shall be effective service of process for any litigation brought against it in any such court. The parties hereby irrevocably and unconditionally waive any objection to the laying of venue of any litigation arising out of this Agreement in the courts of the State of Colorado or the United States of America, in each case, located in the County of Denver, and hereby further irrevocably and unconditionally waive and agree not to plead or claim in any such court that any such litigation brought in any such court has been brought in an inconvenient forum.
2.4 Attorney Fees. If any action at law or in equity is brought to enforce or interpret the terms of this Agreement, the prevailing party shall be entitled to its reasonable attorneys’ fees, costs, expert witness fees and all other disbursements in addition to any other relief to which it or he may be entitled.
2.5 Modification. This Agreement may not be amended or modified by the parties except by a written agreement executed by both parties.
2.6 Headings or Captions. Headings or captions contained in this Agreement have been inserted herein only as a matter of convenience and in no way define, limit, extend or describe the scope of this Agreement or the intent of any provision hereof.
2.7 Construction. Unless the context of this Agreement clearly requires otherwise: (i) references to the plural include the singular and vice versa; (ii) references to one gender include all genders; (iii) “including” is not limiting; (iv) “or” has the inclusive meaning represented by the phrase “and/or”; (v) the words “hereof”, “herein”, “hereby”, “hereunder” and similar terms in this Agreement refer to this Agreement as a whole and not to any particular provision of this Agreement; (vi) section and clause references are to this Agreement unless otherwise specified; (vii) reference to any agreement (including this Agreement), document or instrument means such agreement, document or instrument as amended or modified and in effect from time to time in accordance with the terms thereof and, if applicable, the terms hereof; and (vii) general or specific references to any Law mean such Law as amended, modified, codified or reenacted, in whole or in part, and in effect from time to time, unless the effect thereof is to reduce, limit or otherwise prejudicially affect any obligation or any right, power or remedy hereunder, in which case such amendment, modification, codification or reenactment will not, to the maximum extent permitted by Law, form part of this Agreement and is to be disregarded for purposes of the construction and interpretation hereof.
2.8 Counterparts. This Agreement may be executed by the parties on any number of separate counterparts, and all such counterparts so executed constitute one agreement binding on all the parties notwithstanding that all the parties are not signatories to the same counterpart.
2.9 Entire Agreement. This Agreement and the Purchase Agreement and the documents referred to therein constitute the entire agreement among the parties pertaining to the subject matter hereof and supersede all prior agreements, letters of intent, understandings, negotiations and discussions of the parties, whether oral or written.
2.10 Failure or Delay. No failure on the part of any party to exercise, and no delay in exercising, any right, power or privilege hereunder operates as a waiver thereof; nor does any single or partial exercise of any right, power or privilege hereunder preclude any other or further exercise thereof, or the exercise of any other right, power or privilege. No notice to or demand on any party in any case entitles such party to any other or further notice or demand in similar or other circumstances.
2.11 Notice. Any notice required or permitted to be given hereunder shall be sufficient if in writing and if hand delivered, sent by overnight courier, or sent by registered or certified mail, postage prepaid, addressed as follows:
If to the Buyer: Level 3 Communications, LLC
1025 Eldorado Blvd.
Broomfield, Colorado 80021
Attention: General Counsel
With a copy to: Otten, Johnson, Robinson, Neff & Ragonetti, P.C.
1600 U.S. Bank Tower
950 Seventeenth Street
Denver, Colorado 80202
Attention: Steven E. Segal, Esq.
If to Sellers: ICG Communications, Inc.
161 Inverness Drive West
Englewood, Colorado 80112
Attention: General Counsel
[Signatures on following page]
IN WITNESS WHEREOF, Sellers and the Buyer have executed this Agreement effective as of the date first written above.
ICG COMMUNICATIONS, INC.
By:
Name:
Title:
ICG TELECOM GROUP, INC.
By:
Name:
Title:
LEVEL 3 COMMUNICATIONS, LLC
By:
Name: Robert M. Yates
Title: Senior Vice President and
Assistant General Counsel
Signature Page to
| Not mentioned |
545_nda-2 | 545_nda-2_0 | Q: Confidential Information shall only include technical information.
Text: Exhibit 10.22
NON-DISCLOSURE, NON-COMPETITION, AND NON-SOLICITATION AGREEMENT
This Non-Disclosure, Non-Competition, and Non-Solicitation Agreement (“Agreement”) is entered into effective as of April 1, 2004 (the “Effective Date”), by and between Level 3 Communications, LLC, a Delaware limited liability company (“Level 3” or the “Buyer”), on the one hand, and ICG Communications, Inc. (the “Parent”), a Delaware corporation, and ICG Telecom Group, Inc. (the “Company”), a Delaware corporation, and for and on behalf of any of their direct or indirect parents, subsidiaries, successors, or Affiliates (collectively referred to as “ICG” or the “Sellers”), on the other hand.
RECITALS
A. The Sellers are engaged in conducting a dial-up ISP business whereby the Sellers provide Internet access and other Internet-related services to Internet service providers and their customers.
B. The Buyer and Sellers are parties to an Asset Purchase Agreement (the “Purchase Agreement”) dated as of April 1, 2004, pursuant to which Level 3 is purchasing from Sellers certain of Sellers’ assets (the “Acquired Assets”) used or held for use by Sellers in conducting the Sellers’ dial-up ISP business whereby the Company provides dial-up Internet access to Internet service providers and their customers, excluding the Company’s direct Internet access and primary rate interface businesses (the “Business”), as more fully described therein. Contemporaneous with this Agreement, Buyer and Sellers are closing and consummating the principal transactions contemplated by the Purchase Agreement.
C. Sellers acknowledge that the Buyer would not enter into or close the Purchase Agreement without Sellers’ agreement to the terms and conditions of this Agreement, and the execution of this Agreement by Sellers is a condition precedent to the Buyer’s obligation to close under the Purchase Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the Buyer’s execution and delivery of the Purchase Agreement, the closing thereunder and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
ARTICLE 1 NON-DISCLOSURE, NON-COMPETITION AND NON-SOLICITATION
1.1 Non-Disclosure. Sellers shall not disclose or appropriate for their own use, or for the use of any third party, at any time, any trade secrets or confidential or proprietary information included in or related to the Acquired Assets or the Business as previously operated by Sellers, whether or not developed by Sellers including, without limitation, information pertaining to the customers, vendors, prices, profits, contract terms or operating procedures of Sellers relating to the Business or the Acquired Assets; provided, however, that Sellers may use any such trade secrets and confidential or proprietary information (a) if and to the extent used in their businesses other than the Business and (b) in connection with providing services pursuant to the Transition Services Agreement.
1.2 Non-Competition. For a period of three (3) years from and after the Effective Date (the “Restrictive Period”), Sellers shall not engage, directly or indirectly, through any other entity or with any person (whether as an owner, shareholder, partner, member, director, officer, employee, agent, investor, or otherwise), in any business activity which is in competition with the Business conducted by Buyer during the Restrictive Period. The foregoing restrictions shall, however, apply only for a one-year period from and after the Effective Date with respect to any successor of any Seller who is not engaged in the same type of business as the Business as of the Effective Date and shall not apply at all with respect to any successor, other than Sellers and any of their Affiliates as of the Effective Date, that is engaged in the same type of business as the Business. Because Sellers’ Business is nationwide, Sellers agree that they will not so compete anywhere in the United States (the “Territory”). Notwithstanding the foregoing, Sellers may, during the 60-day period following the Effective Date, provide services in the Business to those customers delineated on Schedule 1.02(c) of the Purchase Agreement, subject to and in accordance with Section 5.08 of the Purchase Agreement; provided such services shall be provided solely pursuant to the customer contracts listed on such Schedule 1.02(c) and the amount of such service shall not be materially greater than that provided to such customers by Sellers during the 60-day period prior to the Effective Date.
1.3 Non-Solicitation. During the Restrictive Period, without the prior written consent of the Buyer (which Buyer may withhold in the exercise of its sole, absolute, and arbitrary discretion), Sellers (including, without limitation, any successors) shall not induce or solicit, directly or indirectly, through any other entity or with any other person, (whether as an owner, shareholder, partner, member, director, officer, employee, agent, investor, or otherwise) any employee of the Buyer or its Affiliates who is involved in the managed modem business conducted by Buyer or any of its Affiliates, including, without limitation, the Business, to terminate the employee’s employment with the Buyer or any such Affiliate.
1.4 Remedies. Any breach of any of the covenants set forth in this Article 1 would result in irreparable damage to the Buyer. Consequently, and without limiting other remedies which may exist for a breach of this Agreement, the Buyer will have the right to enforce such covenants by obtaining a temporary restraining order, preliminary injunction, and permanent injunction restraining any violation hereof, pending or following a trial on the merits, without posting any bond and in addition to all other remedies available to the Buyer at law or in equity.
1.5 Reasonableness of Covenants. Sellers acknowledge and agree that the covenants contained in this Agreement are reasonable in all respects, including without limitation their duration and geographic scope. Sellers expressly waive any defenses as to the reasonableness of such covenants in any action between the parties to enforce this Agreement.
1.6 Certain Definitions. As used in this Agreement:
(a) “Affiliate” means, with respect to any Person, a Person that directly or indirectly, through one or more intermediaries, Controls, is Controlled by, or is under common Control with, such Person; provided that a Person will not be deemed to Control another Person if the only indicia of such Control is voting control of more than 10% but less than 20% of outstanding, publicly traded equity securities of such other Person.
(b) “Control” (including the terms “Controlled by” and “under common Control with”) means, as used with respect to any Person, possession, directly or indirectly or as a trustee or executor, of power to direct or cause the direction of management or policies of such Person (whether through ownership of voting securities, as trustee or executor, by agreement or otherwise).
(c) “Person” means an individual, corporation, partnership, limited liability company, joint venture, trust, unincorporated organization or other entity.
(d) Other terms used but not defined herein have the respective meanings given to such terms in the Purchase Agreement.
ARTICLE 2 MISCELLANEOUS
2.1 Validity. Sellers acknowledge that the Non-Disclosure, Non-Competition and Non-Solicitation covenants set forth in Article 1 are necessary to protect the Buyer from competing efforts and to insure that the Buyer receives the benefits for which it has paid by closing under the Purchase Agreement. If either the Non-Disclosure, Non-Competition or Non-Solicitation provisions contained in this Agreement are held by a court of competent jurisdiction to be unenforceable under applicable law with respect to duration or scope of the agreements, then the Non-Disclosure Agreement, Non-Competition Agreement or Non-Solicitation Agreement, as applicable, will be deemed unenforceable in such part or parts of the Territory for such lesser period of time and for such limited scope as is permissible under applicable law.
2.2 Waiver. The Buyer’s failure to enforce any provision of this Agreement will not in any way be construed as a waiver of any such provision or prevent the Buyer thereafter from enforcing each and every provision of this Agreement.
2.3 Applicable Law, Jurisdiction, and Venue. This Agreement shall be governed by, and construed in accordance with, the Laws of the State of Colorado applicable to agreements made and to be performed wholly within such jurisdiction. The parties hereby irrevocably and unconditionally consent to the exclusive jurisdiction of the courts of the State of Colorado and of the United States of America, in each case located in the County of Denver, for any litigation arising out of or relating to this Agreement, and further agree that service of any process, summons, notice or document by U.S. registered mail to its respective address set forth in this Agreement shall be effective service of process for any litigation brought against it in any such court. The parties hereby irrevocably and unconditionally waive any objection to the laying of venue of any litigation arising out of this Agreement in the courts of the State of Colorado or the United States of America, in each case, located in the County of Denver, and hereby further irrevocably and unconditionally waive and agree not to plead or claim in any such court that any such litigation brought in any such court has been brought in an inconvenient forum.
2.4 Attorney Fees. If any action at law or in equity is brought to enforce or interpret the terms of this Agreement, the prevailing party shall be entitled to its reasonable attorneys’ fees, costs, expert witness fees and all other disbursements in addition to any other relief to which it or he may be entitled.
2.5 Modification. This Agreement may not be amended or modified by the parties except by a written agreement executed by both parties.
2.6 Headings or Captions. Headings or captions contained in this Agreement have been inserted herein only as a matter of convenience and in no way define, limit, extend or describe the scope of this Agreement or the intent of any provision hereof.
2.7 Construction. Unless the context of this Agreement clearly requires otherwise: (i) references to the plural include the singular and vice versa; (ii) references to one gender include all genders; (iii) “including” is not limiting; (iv) “or” has the inclusive meaning represented by the phrase “and/or”; (v) the words “hereof”, “herein”, “hereby”, “hereunder” and similar terms in this Agreement refer to this Agreement as a whole and not to any particular provision of this Agreement; (vi) section and clause references are to this Agreement unless otherwise specified; (vii) reference to any agreement (including this Agreement), document or instrument means such agreement, document or instrument as amended or modified and in effect from time to time in accordance with the terms thereof and, if applicable, the terms hereof; and (vii) general or specific references to any Law mean such Law as amended, modified, codified or reenacted, in whole or in part, and in effect from time to time, unless the effect thereof is to reduce, limit or otherwise prejudicially affect any obligation or any right, power or remedy hereunder, in which case such amendment, modification, codification or reenactment will not, to the maximum extent permitted by Law, form part of this Agreement and is to be disregarded for purposes of the construction and interpretation hereof.
2.8 Counterparts. This Agreement may be executed by the parties on any number of separate counterparts, and all such counterparts so executed constitute one agreement binding on all the parties notwithstanding that all the parties are not signatories to the same counterpart.
2.9 Entire Agreement. This Agreement and the Purchase Agreement and the documents referred to therein constitute the entire agreement among the parties pertaining to the subject matter hereof and supersede all prior agreements, letters of intent, understandings, negotiations and discussions of the parties, whether oral or written.
2.10 Failure or Delay. No failure on the part of any party to exercise, and no delay in exercising, any right, power or privilege hereunder operates as a waiver thereof; nor does any single or partial exercise of any right, power or privilege hereunder preclude any other or further exercise thereof, or the exercise of any other right, power or privilege. No notice to or demand on any party in any case entitles such party to any other or further notice or demand in similar or other circumstances.
2.11 Notice. Any notice required or permitted to be given hereunder shall be sufficient if in writing and if hand delivered, sent by overnight courier, or sent by registered or certified mail, postage prepaid, addressed as follows:
If to the Buyer: Level 3 Communications, LLC
1025 Eldorado Blvd.
Broomfield, Colorado 80021
Attention: General Counsel
With a copy to: Otten, Johnson, Robinson, Neff & Ragonetti, P.C.
1600 U.S. Bank Tower
950 Seventeenth Street
Denver, Colorado 80202
Attention: Steven E. Segal, Esq.
If to Sellers: ICG Communications, Inc.
161 Inverness Drive West
Englewood, Colorado 80112
Attention: General Counsel
[Signatures on following page]
IN WITNESS WHEREOF, Sellers and the Buyer have executed this Agreement effective as of the date first written above.
ICG COMMUNICATIONS, INC.
By:
Name:
Title:
ICG TELECOM GROUP, INC.
By:
Name:
Title:
LEVEL 3 COMMUNICATIONS, LLC
By:
Name: Robert M. Yates
Title: Senior Vice President and
Assistant General Counsel
Signature Page to
| Contradiction |
545_nda-1 | 545_nda-1_0 | Q: All Confidential Information shall be expressly identified by the Disclosing Party.
Text: Exhibit 10.22
NON-DISCLOSURE, NON-COMPETITION, AND NON-SOLICITATION AGREEMENT
This Non-Disclosure, Non-Competition, and Non-Solicitation Agreement (“Agreement”) is entered into effective as of April 1, 2004 (the “Effective Date”), by and between Level 3 Communications, LLC, a Delaware limited liability company (“Level 3” or the “Buyer”), on the one hand, and ICG Communications, Inc. (the “Parent”), a Delaware corporation, and ICG Telecom Group, Inc. (the “Company”), a Delaware corporation, and for and on behalf of any of their direct or indirect parents, subsidiaries, successors, or Affiliates (collectively referred to as “ICG” or the “Sellers”), on the other hand.
RECITALS
A. The Sellers are engaged in conducting a dial-up ISP business whereby the Sellers provide Internet access and other Internet-related services to Internet service providers and their customers.
B. The Buyer and Sellers are parties to an Asset Purchase Agreement (the “Purchase Agreement”) dated as of April 1, 2004, pursuant to which Level 3 is purchasing from Sellers certain of Sellers’ assets (the “Acquired Assets”) used or held for use by Sellers in conducting the Sellers’ dial-up ISP business whereby the Company provides dial-up Internet access to Internet service providers and their customers, excluding the Company’s direct Internet access and primary rate interface businesses (the “Business”), as more fully described therein. Contemporaneous with this Agreement, Buyer and Sellers are closing and consummating the principal transactions contemplated by the Purchase Agreement.
C. Sellers acknowledge that the Buyer would not enter into or close the Purchase Agreement without Sellers’ agreement to the terms and conditions of this Agreement, and the execution of this Agreement by Sellers is a condition precedent to the Buyer’s obligation to close under the Purchase Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the Buyer’s execution and delivery of the Purchase Agreement, the closing thereunder and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
ARTICLE 1 NON-DISCLOSURE, NON-COMPETITION AND NON-SOLICITATION
1.1 Non-Disclosure. Sellers shall not disclose or appropriate for their own use, or for the use of any third party, at any time, any trade secrets or confidential or proprietary information included in or related to the Acquired Assets or the Business as previously operated by Sellers, whether or not developed by Sellers including, without limitation, information pertaining to the customers, vendors, prices, profits, contract terms or operating procedures of Sellers relating to the Business or the Acquired Assets; provided, however, that Sellers may use any such trade secrets and confidential or proprietary information (a) if and to the extent used in their businesses other than the Business and (b) in connection with providing services pursuant to the Transition Services Agreement.
1.2 Non-Competition. For a period of three (3) years from and after the Effective Date (the “Restrictive Period”), Sellers shall not engage, directly or indirectly, through any other entity or with any person (whether as an owner, shareholder, partner, member, director, officer, employee, agent, investor, or otherwise), in any business activity which is in competition with the Business conducted by Buyer during the Restrictive Period. The foregoing restrictions shall, however, apply only for a one-year period from and after the Effective Date with respect to any successor of any Seller who is not engaged in the same type of business as the Business as of the Effective Date and shall not apply at all with respect to any successor, other than Sellers and any of their Affiliates as of the Effective Date, that is engaged in the same type of business as the Business. Because Sellers’ Business is nationwide, Sellers agree that they will not so compete anywhere in the United States (the “Territory”). Notwithstanding the foregoing, Sellers may, during the 60-day period following the Effective Date, provide services in the Business to those customers delineated on Schedule 1.02(c) of the Purchase Agreement, subject to and in accordance with Section 5.08 of the Purchase Agreement; provided such services shall be provided solely pursuant to the customer contracts listed on such Schedule 1.02(c) and the amount of such service shall not be materially greater than that provided to such customers by Sellers during the 60-day period prior to the Effective Date.
1.3 Non-Solicitation. During the Restrictive Period, without the prior written consent of the Buyer (which Buyer may withhold in the exercise of its sole, absolute, and arbitrary discretion), Sellers (including, without limitation, any successors) shall not induce or solicit, directly or indirectly, through any other entity or with any other person, (whether as an owner, shareholder, partner, member, director, officer, employee, agent, investor, or otherwise) any employee of the Buyer or its Affiliates who is involved in the managed modem business conducted by Buyer or any of its Affiliates, including, without limitation, the Business, to terminate the employee’s employment with the Buyer or any such Affiliate.
1.4 Remedies. Any breach of any of the covenants set forth in this Article 1 would result in irreparable damage to the Buyer. Consequently, and without limiting other remedies which may exist for a breach of this Agreement, the Buyer will have the right to enforce such covenants by obtaining a temporary restraining order, preliminary injunction, and permanent injunction restraining any violation hereof, pending or following a trial on the merits, without posting any bond and in addition to all other remedies available to the Buyer at law or in equity.
1.5 Reasonableness of Covenants. Sellers acknowledge and agree that the covenants contained in this Agreement are reasonable in all respects, including without limitation their duration and geographic scope. Sellers expressly waive any defenses as to the reasonableness of such covenants in any action between the parties to enforce this Agreement.
1.6 Certain Definitions. As used in this Agreement:
(a) “Affiliate” means, with respect to any Person, a Person that directly or indirectly, through one or more intermediaries, Controls, is Controlled by, or is under common Control with, such Person; provided that a Person will not be deemed to Control another Person if the only indicia of such Control is voting control of more than 10% but less than 20% of outstanding, publicly traded equity securities of such other Person.
(b) “Control” (including the terms “Controlled by” and “under common Control with”) means, as used with respect to any Person, possession, directly or indirectly or as a trustee or executor, of power to direct or cause the direction of management or policies of such Person (whether through ownership of voting securities, as trustee or executor, by agreement or otherwise).
(c) “Person” means an individual, corporation, partnership, limited liability company, joint venture, trust, unincorporated organization or other entity.
(d) Other terms used but not defined herein have the respective meanings given to such terms in the Purchase Agreement.
ARTICLE 2 MISCELLANEOUS
2.1 Validity. Sellers acknowledge that the Non-Disclosure, Non-Competition and Non-Solicitation covenants set forth in Article 1 are necessary to protect the Buyer from competing efforts and to insure that the Buyer receives the benefits for which it has paid by closing under the Purchase Agreement. If either the Non-Disclosure, Non-Competition or Non-Solicitation provisions contained in this Agreement are held by a court of competent jurisdiction to be unenforceable under applicable law with respect to duration or scope of the agreements, then the Non-Disclosure Agreement, Non-Competition Agreement or Non-Solicitation Agreement, as applicable, will be deemed unenforceable in such part or parts of the Territory for such lesser period of time and for such limited scope as is permissible under applicable law.
2.2 Waiver. The Buyer’s failure to enforce any provision of this Agreement will not in any way be construed as a waiver of any such provision or prevent the Buyer thereafter from enforcing each and every provision of this Agreement.
2.3 Applicable Law, Jurisdiction, and Venue. This Agreement shall be governed by, and construed in accordance with, the Laws of the State of Colorado applicable to agreements made and to be performed wholly within such jurisdiction. The parties hereby irrevocably and unconditionally consent to the exclusive jurisdiction of the courts of the State of Colorado and of the United States of America, in each case located in the County of Denver, for any litigation arising out of or relating to this Agreement, and further agree that service of any process, summons, notice or document by U.S. registered mail to its respective address set forth in this Agreement shall be effective service of process for any litigation brought against it in any such court. The parties hereby irrevocably and unconditionally waive any objection to the laying of venue of any litigation arising out of this Agreement in the courts of the State of Colorado or the United States of America, in each case, located in the County of Denver, and hereby further irrevocably and unconditionally waive and agree not to plead or claim in any such court that any such litigation brought in any such court has been brought in an inconvenient forum.
2.4 Attorney Fees. If any action at law or in equity is brought to enforce or interpret the terms of this Agreement, the prevailing party shall be entitled to its reasonable attorneys’ fees, costs, expert witness fees and all other disbursements in addition to any other relief to which it or he may be entitled.
2.5 Modification. This Agreement may not be amended or modified by the parties except by a written agreement executed by both parties.
2.6 Headings or Captions. Headings or captions contained in this Agreement have been inserted herein only as a matter of convenience and in no way define, limit, extend or describe the scope of this Agreement or the intent of any provision hereof.
2.7 Construction. Unless the context of this Agreement clearly requires otherwise: (i) references to the plural include the singular and vice versa; (ii) references to one gender include all genders; (iii) “including” is not limiting; (iv) “or” has the inclusive meaning represented by the phrase “and/or”; (v) the words “hereof”, “herein”, “hereby”, “hereunder” and similar terms in this Agreement refer to this Agreement as a whole and not to any particular provision of this Agreement; (vi) section and clause references are to this Agreement unless otherwise specified; (vii) reference to any agreement (including this Agreement), document or instrument means such agreement, document or instrument as amended or modified and in effect from time to time in accordance with the terms thereof and, if applicable, the terms hereof; and (vii) general or specific references to any Law mean such Law as amended, modified, codified or reenacted, in whole or in part, and in effect from time to time, unless the effect thereof is to reduce, limit or otherwise prejudicially affect any obligation or any right, power or remedy hereunder, in which case such amendment, modification, codification or reenactment will not, to the maximum extent permitted by Law, form part of this Agreement and is to be disregarded for purposes of the construction and interpretation hereof.
2.8 Counterparts. This Agreement may be executed by the parties on any number of separate counterparts, and all such counterparts so executed constitute one agreement binding on all the parties notwithstanding that all the parties are not signatories to the same counterpart.
2.9 Entire Agreement. This Agreement and the Purchase Agreement and the documents referred to therein constitute the entire agreement among the parties pertaining to the subject matter hereof and supersede all prior agreements, letters of intent, understandings, negotiations and discussions of the parties, whether oral or written.
2.10 Failure or Delay. No failure on the part of any party to exercise, and no delay in exercising, any right, power or privilege hereunder operates as a waiver thereof; nor does any single or partial exercise of any right, power or privilege hereunder preclude any other or further exercise thereof, or the exercise of any other right, power or privilege. No notice to or demand on any party in any case entitles such party to any other or further notice or demand in similar or other circumstances.
2.11 Notice. Any notice required or permitted to be given hereunder shall be sufficient if in writing and if hand delivered, sent by overnight courier, or sent by registered or certified mail, postage prepaid, addressed as follows:
If to the Buyer: Level 3 Communications, LLC
1025 Eldorado Blvd.
Broomfield, Colorado 80021
Attention: General Counsel
With a copy to: Otten, Johnson, Robinson, Neff & Ragonetti, P.C.
1600 U.S. Bank Tower
950 Seventeenth Street
Denver, Colorado 80202
Attention: Steven E. Segal, Esq.
If to Sellers: ICG Communications, Inc.
161 Inverness Drive West
Englewood, Colorado 80112
Attention: General Counsel
[Signatures on following page]
IN WITNESS WHEREOF, Sellers and the Buyer have executed this Agreement effective as of the date first written above.
ICG COMMUNICATIONS, INC.
By:
Name:
Title:
ICG TELECOM GROUP, INC.
By:
Name:
Title:
LEVEL 3 COMMUNICATIONS, LLC
By:
Name: Robert M. Yates
Title: Senior Vice President and
Assistant General Counsel
Signature Page to
| Not mentioned |
545_nda-19 | 545_nda-19_0 | Q: Some obligations of Agreement may survive termination of Agreement.
Text: Exhibit 10.22
NON-DISCLOSURE, NON-COMPETITION, AND NON-SOLICITATION AGREEMENT
This Non-Disclosure, Non-Competition, and Non-Solicitation Agreement (“Agreement”) is entered into effective as of April 1, 2004 (the “Effective Date”), by and between Level 3 Communications, LLC, a Delaware limited liability company (“Level 3” or the “Buyer”), on the one hand, and ICG Communications, Inc. (the “Parent”), a Delaware corporation, and ICG Telecom Group, Inc. (the “Company”), a Delaware corporation, and for and on behalf of any of their direct or indirect parents, subsidiaries, successors, or Affiliates (collectively referred to as “ICG” or the “Sellers”), on the other hand.
RECITALS
A. The Sellers are engaged in conducting a dial-up ISP business whereby the Sellers provide Internet access and other Internet-related services to Internet service providers and their customers.
B. The Buyer and Sellers are parties to an Asset Purchase Agreement (the “Purchase Agreement”) dated as of April 1, 2004, pursuant to which Level 3 is purchasing from Sellers certain of Sellers’ assets (the “Acquired Assets”) used or held for use by Sellers in conducting the Sellers’ dial-up ISP business whereby the Company provides dial-up Internet access to Internet service providers and their customers, excluding the Company’s direct Internet access and primary rate interface businesses (the “Business”), as more fully described therein. Contemporaneous with this Agreement, Buyer and Sellers are closing and consummating the principal transactions contemplated by the Purchase Agreement.
C. Sellers acknowledge that the Buyer would not enter into or close the Purchase Agreement without Sellers’ agreement to the terms and conditions of this Agreement, and the execution of this Agreement by Sellers is a condition precedent to the Buyer’s obligation to close under the Purchase Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the Buyer’s execution and delivery of the Purchase Agreement, the closing thereunder and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
ARTICLE 1 NON-DISCLOSURE, NON-COMPETITION AND NON-SOLICITATION
1.1 Non-Disclosure. Sellers shall not disclose or appropriate for their own use, or for the use of any third party, at any time, any trade secrets or confidential or proprietary information included in or related to the Acquired Assets or the Business as previously operated by Sellers, whether or not developed by Sellers including, without limitation, information pertaining to the customers, vendors, prices, profits, contract terms or operating procedures of Sellers relating to the Business or the Acquired Assets; provided, however, that Sellers may use any such trade secrets and confidential or proprietary information (a) if and to the extent used in their businesses other than the Business and (b) in connection with providing services pursuant to the Transition Services Agreement.
1.2 Non-Competition. For a period of three (3) years from and after the Effective Date (the “Restrictive Period”), Sellers shall not engage, directly or indirectly, through any other entity or with any person (whether as an owner, shareholder, partner, member, director, officer, employee, agent, investor, or otherwise), in any business activity which is in competition with the Business conducted by Buyer during the Restrictive Period. The foregoing restrictions shall, however, apply only for a one-year period from and after the Effective Date with respect to any successor of any Seller who is not engaged in the same type of business as the Business as of the Effective Date and shall not apply at all with respect to any successor, other than Sellers and any of their Affiliates as of the Effective Date, that is engaged in the same type of business as the Business. Because Sellers’ Business is nationwide, Sellers agree that they will not so compete anywhere in the United States (the “Territory”). Notwithstanding the foregoing, Sellers may, during the 60-day period following the Effective Date, provide services in the Business to those customers delineated on Schedule 1.02(c) of the Purchase Agreement, subject to and in accordance with Section 5.08 of the Purchase Agreement; provided such services shall be provided solely pursuant to the customer contracts listed on such Schedule 1.02(c) and the amount of such service shall not be materially greater than that provided to such customers by Sellers during the 60-day period prior to the Effective Date.
1.3 Non-Solicitation. During the Restrictive Period, without the prior written consent of the Buyer (which Buyer may withhold in the exercise of its sole, absolute, and arbitrary discretion), Sellers (including, without limitation, any successors) shall not induce or solicit, directly or indirectly, through any other entity or with any other person, (whether as an owner, shareholder, partner, member, director, officer, employee, agent, investor, or otherwise) any employee of the Buyer or its Affiliates who is involved in the managed modem business conducted by Buyer or any of its Affiliates, including, without limitation, the Business, to terminate the employee’s employment with the Buyer or any such Affiliate.
1.4 Remedies. Any breach of any of the covenants set forth in this Article 1 would result in irreparable damage to the Buyer. Consequently, and without limiting other remedies which may exist for a breach of this Agreement, the Buyer will have the right to enforce such covenants by obtaining a temporary restraining order, preliminary injunction, and permanent injunction restraining any violation hereof, pending or following a trial on the merits, without posting any bond and in addition to all other remedies available to the Buyer at law or in equity.
1.5 Reasonableness of Covenants. Sellers acknowledge and agree that the covenants contained in this Agreement are reasonable in all respects, including without limitation their duration and geographic scope. Sellers expressly waive any defenses as to the reasonableness of such covenants in any action between the parties to enforce this Agreement.
1.6 Certain Definitions. As used in this Agreement:
(a) “Affiliate” means, with respect to any Person, a Person that directly or indirectly, through one or more intermediaries, Controls, is Controlled by, or is under common Control with, such Person; provided that a Person will not be deemed to Control another Person if the only indicia of such Control is voting control of more than 10% but less than 20% of outstanding, publicly traded equity securities of such other Person.
(b) “Control” (including the terms “Controlled by” and “under common Control with”) means, as used with respect to any Person, possession, directly or indirectly or as a trustee or executor, of power to direct or cause the direction of management or policies of such Person (whether through ownership of voting securities, as trustee or executor, by agreement or otherwise).
(c) “Person” means an individual, corporation, partnership, limited liability company, joint venture, trust, unincorporated organization or other entity.
(d) Other terms used but not defined herein have the respective meanings given to such terms in the Purchase Agreement.
ARTICLE 2 MISCELLANEOUS
2.1 Validity. Sellers acknowledge that the Non-Disclosure, Non-Competition and Non-Solicitation covenants set forth in Article 1 are necessary to protect the Buyer from competing efforts and to insure that the Buyer receives the benefits for which it has paid by closing under the Purchase Agreement. If either the Non-Disclosure, Non-Competition or Non-Solicitation provisions contained in this Agreement are held by a court of competent jurisdiction to be unenforceable under applicable law with respect to duration or scope of the agreements, then the Non-Disclosure Agreement, Non-Competition Agreement or Non-Solicitation Agreement, as applicable, will be deemed unenforceable in such part or parts of the Territory for such lesser period of time and for such limited scope as is permissible under applicable law.
2.2 Waiver. The Buyer’s failure to enforce any provision of this Agreement will not in any way be construed as a waiver of any such provision or prevent the Buyer thereafter from enforcing each and every provision of this Agreement.
2.3 Applicable Law, Jurisdiction, and Venue. This Agreement shall be governed by, and construed in accordance with, the Laws of the State of Colorado applicable to agreements made and to be performed wholly within such jurisdiction. The parties hereby irrevocably and unconditionally consent to the exclusive jurisdiction of the courts of the State of Colorado and of the United States of America, in each case located in the County of Denver, for any litigation arising out of or relating to this Agreement, and further agree that service of any process, summons, notice or document by U.S. registered mail to its respective address set forth in this Agreement shall be effective service of process for any litigation brought against it in any such court. The parties hereby irrevocably and unconditionally waive any objection to the laying of venue of any litigation arising out of this Agreement in the courts of the State of Colorado or the United States of America, in each case, located in the County of Denver, and hereby further irrevocably and unconditionally waive and agree not to plead or claim in any such court that any such litigation brought in any such court has been brought in an inconvenient forum.
2.4 Attorney Fees. If any action at law or in equity is brought to enforce or interpret the terms of this Agreement, the prevailing party shall be entitled to its reasonable attorneys’ fees, costs, expert witness fees and all other disbursements in addition to any other relief to which it or he may be entitled.
2.5 Modification. This Agreement may not be amended or modified by the parties except by a written agreement executed by both parties.
2.6 Headings or Captions. Headings or captions contained in this Agreement have been inserted herein only as a matter of convenience and in no way define, limit, extend or describe the scope of this Agreement or the intent of any provision hereof.
2.7 Construction. Unless the context of this Agreement clearly requires otherwise: (i) references to the plural include the singular and vice versa; (ii) references to one gender include all genders; (iii) “including” is not limiting; (iv) “or” has the inclusive meaning represented by the phrase “and/or”; (v) the words “hereof”, “herein”, “hereby”, “hereunder” and similar terms in this Agreement refer to this Agreement as a whole and not to any particular provision of this Agreement; (vi) section and clause references are to this Agreement unless otherwise specified; (vii) reference to any agreement (including this Agreement), document or instrument means such agreement, document or instrument as amended or modified and in effect from time to time in accordance with the terms thereof and, if applicable, the terms hereof; and (vii) general or specific references to any Law mean such Law as amended, modified, codified or reenacted, in whole or in part, and in effect from time to time, unless the effect thereof is to reduce, limit or otherwise prejudicially affect any obligation or any right, power or remedy hereunder, in which case such amendment, modification, codification or reenactment will not, to the maximum extent permitted by Law, form part of this Agreement and is to be disregarded for purposes of the construction and interpretation hereof.
2.8 Counterparts. This Agreement may be executed by the parties on any number of separate counterparts, and all such counterparts so executed constitute one agreement binding on all the parties notwithstanding that all the parties are not signatories to the same counterpart.
2.9 Entire Agreement. This Agreement and the Purchase Agreement and the documents referred to therein constitute the entire agreement among the parties pertaining to the subject matter hereof and supersede all prior agreements, letters of intent, understandings, negotiations and discussions of the parties, whether oral or written.
2.10 Failure or Delay. No failure on the part of any party to exercise, and no delay in exercising, any right, power or privilege hereunder operates as a waiver thereof; nor does any single or partial exercise of any right, power or privilege hereunder preclude any other or further exercise thereof, or the exercise of any other right, power or privilege. No notice to or demand on any party in any case entitles such party to any other or further notice or demand in similar or other circumstances.
2.11 Notice. Any notice required or permitted to be given hereunder shall be sufficient if in writing and if hand delivered, sent by overnight courier, or sent by registered or certified mail, postage prepaid, addressed as follows:
If to the Buyer: Level 3 Communications, LLC
1025 Eldorado Blvd.
Broomfield, Colorado 80021
Attention: General Counsel
With a copy to: Otten, Johnson, Robinson, Neff & Ragonetti, P.C.
1600 U.S. Bank Tower
950 Seventeenth Street
Denver, Colorado 80202
Attention: Steven E. Segal, Esq.
If to Sellers: ICG Communications, Inc.
161 Inverness Drive West
Englewood, Colorado 80112
Attention: General Counsel
[Signatures on following page]
IN WITNESS WHEREOF, Sellers and the Buyer have executed this Agreement effective as of the date first written above.
ICG COMMUNICATIONS, INC.
By:
Name:
Title:
ICG TELECOM GROUP, INC.
By:
Name:
Title:
LEVEL 3 COMMUNICATIONS, LLC
By:
Name: Robert M. Yates
Title: Senior Vice President and
Assistant General Counsel
Signature Page to
| Not mentioned |
545_nda-12 | 545_nda-12_0 | Q: Receiving Party may independently develop information similar to Confidential Information.
Text: Exhibit 10.22
NON-DISCLOSURE, NON-COMPETITION, AND NON-SOLICITATION AGREEMENT
This Non-Disclosure, Non-Competition, and Non-Solicitation Agreement (“Agreement”) is entered into effective as of April 1, 2004 (the “Effective Date”), by and between Level 3 Communications, LLC, a Delaware limited liability company (“Level 3” or the “Buyer”), on the one hand, and ICG Communications, Inc. (the “Parent”), a Delaware corporation, and ICG Telecom Group, Inc. (the “Company”), a Delaware corporation, and for and on behalf of any of their direct or indirect parents, subsidiaries, successors, or Affiliates (collectively referred to as “ICG” or the “Sellers”), on the other hand.
RECITALS
A. The Sellers are engaged in conducting a dial-up ISP business whereby the Sellers provide Internet access and other Internet-related services to Internet service providers and their customers.
B. The Buyer and Sellers are parties to an Asset Purchase Agreement (the “Purchase Agreement”) dated as of April 1, 2004, pursuant to which Level 3 is purchasing from Sellers certain of Sellers’ assets (the “Acquired Assets”) used or held for use by Sellers in conducting the Sellers’ dial-up ISP business whereby the Company provides dial-up Internet access to Internet service providers and their customers, excluding the Company’s direct Internet access and primary rate interface businesses (the “Business”), as more fully described therein. Contemporaneous with this Agreement, Buyer and Sellers are closing and consummating the principal transactions contemplated by the Purchase Agreement.
C. Sellers acknowledge that the Buyer would not enter into or close the Purchase Agreement without Sellers’ agreement to the terms and conditions of this Agreement, and the execution of this Agreement by Sellers is a condition precedent to the Buyer’s obligation to close under the Purchase Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the Buyer’s execution and delivery of the Purchase Agreement, the closing thereunder and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
ARTICLE 1 NON-DISCLOSURE, NON-COMPETITION AND NON-SOLICITATION
1.1 Non-Disclosure. Sellers shall not disclose or appropriate for their own use, or for the use of any third party, at any time, any trade secrets or confidential or proprietary information included in or related to the Acquired Assets or the Business as previously operated by Sellers, whether or not developed by Sellers including, without limitation, information pertaining to the customers, vendors, prices, profits, contract terms or operating procedures of Sellers relating to the Business or the Acquired Assets; provided, however, that Sellers may use any such trade secrets and confidential or proprietary information (a) if and to the extent used in their businesses other than the Business and (b) in connection with providing services pursuant to the Transition Services Agreement.
1.2 Non-Competition. For a period of three (3) years from and after the Effective Date (the “Restrictive Period”), Sellers shall not engage, directly or indirectly, through any other entity or with any person (whether as an owner, shareholder, partner, member, director, officer, employee, agent, investor, or otherwise), in any business activity which is in competition with the Business conducted by Buyer during the Restrictive Period. The foregoing restrictions shall, however, apply only for a one-year period from and after the Effective Date with respect to any successor of any Seller who is not engaged in the same type of business as the Business as of the Effective Date and shall not apply at all with respect to any successor, other than Sellers and any of their Affiliates as of the Effective Date, that is engaged in the same type of business as the Business. Because Sellers’ Business is nationwide, Sellers agree that they will not so compete anywhere in the United States (the “Territory”). Notwithstanding the foregoing, Sellers may, during the 60-day period following the Effective Date, provide services in the Business to those customers delineated on Schedule 1.02(c) of the Purchase Agreement, subject to and in accordance with Section 5.08 of the Purchase Agreement; provided such services shall be provided solely pursuant to the customer contracts listed on such Schedule 1.02(c) and the amount of such service shall not be materially greater than that provided to such customers by Sellers during the 60-day period prior to the Effective Date.
1.3 Non-Solicitation. During the Restrictive Period, without the prior written consent of the Buyer (which Buyer may withhold in the exercise of its sole, absolute, and arbitrary discretion), Sellers (including, without limitation, any successors) shall not induce or solicit, directly or indirectly, through any other entity or with any other person, (whether as an owner, shareholder, partner, member, director, officer, employee, agent, investor, or otherwise) any employee of the Buyer or its Affiliates who is involved in the managed modem business conducted by Buyer or any of its Affiliates, including, without limitation, the Business, to terminate the employee’s employment with the Buyer or any such Affiliate.
1.4 Remedies. Any breach of any of the covenants set forth in this Article 1 would result in irreparable damage to the Buyer. Consequently, and without limiting other remedies which may exist for a breach of this Agreement, the Buyer will have the right to enforce such covenants by obtaining a temporary restraining order, preliminary injunction, and permanent injunction restraining any violation hereof, pending or following a trial on the merits, without posting any bond and in addition to all other remedies available to the Buyer at law or in equity.
1.5 Reasonableness of Covenants. Sellers acknowledge and agree that the covenants contained in this Agreement are reasonable in all respects, including without limitation their duration and geographic scope. Sellers expressly waive any defenses as to the reasonableness of such covenants in any action between the parties to enforce this Agreement.
1.6 Certain Definitions. As used in this Agreement:
(a) “Affiliate” means, with respect to any Person, a Person that directly or indirectly, through one or more intermediaries, Controls, is Controlled by, or is under common Control with, such Person; provided that a Person will not be deemed to Control another Person if the only indicia of such Control is voting control of more than 10% but less than 20% of outstanding, publicly traded equity securities of such other Person.
(b) “Control” (including the terms “Controlled by” and “under common Control with”) means, as used with respect to any Person, possession, directly or indirectly or as a trustee or executor, of power to direct or cause the direction of management or policies of such Person (whether through ownership of voting securities, as trustee or executor, by agreement or otherwise).
(c) “Person” means an individual, corporation, partnership, limited liability company, joint venture, trust, unincorporated organization or other entity.
(d) Other terms used but not defined herein have the respective meanings given to such terms in the Purchase Agreement.
ARTICLE 2 MISCELLANEOUS
2.1 Validity. Sellers acknowledge that the Non-Disclosure, Non-Competition and Non-Solicitation covenants set forth in Article 1 are necessary to protect the Buyer from competing efforts and to insure that the Buyer receives the benefits for which it has paid by closing under the Purchase Agreement. If either the Non-Disclosure, Non-Competition or Non-Solicitation provisions contained in this Agreement are held by a court of competent jurisdiction to be unenforceable under applicable law with respect to duration or scope of the agreements, then the Non-Disclosure Agreement, Non-Competition Agreement or Non-Solicitation Agreement, as applicable, will be deemed unenforceable in such part or parts of the Territory for such lesser period of time and for such limited scope as is permissible under applicable law.
2.2 Waiver. The Buyer’s failure to enforce any provision of this Agreement will not in any way be construed as a waiver of any such provision or prevent the Buyer thereafter from enforcing each and every provision of this Agreement.
2.3 Applicable Law, Jurisdiction, and Venue. This Agreement shall be governed by, and construed in accordance with, the Laws of the State of Colorado applicable to agreements made and to be performed wholly within such jurisdiction. The parties hereby irrevocably and unconditionally consent to the exclusive jurisdiction of the courts of the State of Colorado and of the United States of America, in each case located in the County of Denver, for any litigation arising out of or relating to this Agreement, and further agree that service of any process, summons, notice or document by U.S. registered mail to its respective address set forth in this Agreement shall be effective service of process for any litigation brought against it in any such court. The parties hereby irrevocably and unconditionally waive any objection to the laying of venue of any litigation arising out of this Agreement in the courts of the State of Colorado or the United States of America, in each case, located in the County of Denver, and hereby further irrevocably and unconditionally waive and agree not to plead or claim in any such court that any such litigation brought in any such court has been brought in an inconvenient forum.
2.4 Attorney Fees. If any action at law or in equity is brought to enforce or interpret the terms of this Agreement, the prevailing party shall be entitled to its reasonable attorneys’ fees, costs, expert witness fees and all other disbursements in addition to any other relief to which it or he may be entitled.
2.5 Modification. This Agreement may not be amended or modified by the parties except by a written agreement executed by both parties.
2.6 Headings or Captions. Headings or captions contained in this Agreement have been inserted herein only as a matter of convenience and in no way define, limit, extend or describe the scope of this Agreement or the intent of any provision hereof.
2.7 Construction. Unless the context of this Agreement clearly requires otherwise: (i) references to the plural include the singular and vice versa; (ii) references to one gender include all genders; (iii) “including” is not limiting; (iv) “or” has the inclusive meaning represented by the phrase “and/or”; (v) the words “hereof”, “herein”, “hereby”, “hereunder” and similar terms in this Agreement refer to this Agreement as a whole and not to any particular provision of this Agreement; (vi) section and clause references are to this Agreement unless otherwise specified; (vii) reference to any agreement (including this Agreement), document or instrument means such agreement, document or instrument as amended or modified and in effect from time to time in accordance with the terms thereof and, if applicable, the terms hereof; and (vii) general or specific references to any Law mean such Law as amended, modified, codified or reenacted, in whole or in part, and in effect from time to time, unless the effect thereof is to reduce, limit or otherwise prejudicially affect any obligation or any right, power or remedy hereunder, in which case such amendment, modification, codification or reenactment will not, to the maximum extent permitted by Law, form part of this Agreement and is to be disregarded for purposes of the construction and interpretation hereof.
2.8 Counterparts. This Agreement may be executed by the parties on any number of separate counterparts, and all such counterparts so executed constitute one agreement binding on all the parties notwithstanding that all the parties are not signatories to the same counterpart.
2.9 Entire Agreement. This Agreement and the Purchase Agreement and the documents referred to therein constitute the entire agreement among the parties pertaining to the subject matter hereof and supersede all prior agreements, letters of intent, understandings, negotiations and discussions of the parties, whether oral or written.
2.10 Failure or Delay. No failure on the part of any party to exercise, and no delay in exercising, any right, power or privilege hereunder operates as a waiver thereof; nor does any single or partial exercise of any right, power or privilege hereunder preclude any other or further exercise thereof, or the exercise of any other right, power or privilege. No notice to or demand on any party in any case entitles such party to any other or further notice or demand in similar or other circumstances.
2.11 Notice. Any notice required or permitted to be given hereunder shall be sufficient if in writing and if hand delivered, sent by overnight courier, or sent by registered or certified mail, postage prepaid, addressed as follows:
If to the Buyer: Level 3 Communications, LLC
1025 Eldorado Blvd.
Broomfield, Colorado 80021
Attention: General Counsel
With a copy to: Otten, Johnson, Robinson, Neff & Ragonetti, P.C.
1600 U.S. Bank Tower
950 Seventeenth Street
Denver, Colorado 80202
Attention: Steven E. Segal, Esq.
If to Sellers: ICG Communications, Inc.
161 Inverness Drive West
Englewood, Colorado 80112
Attention: General Counsel
[Signatures on following page]
IN WITNESS WHEREOF, Sellers and the Buyer have executed this Agreement effective as of the date first written above.
ICG COMMUNICATIONS, INC.
By:
Name:
Title:
ICG TELECOM GROUP, INC.
By:
Name:
Title:
LEVEL 3 COMMUNICATIONS, LLC
By:
Name: Robert M. Yates
Title: Senior Vice President and
Assistant General Counsel
Signature Page to
| Not mentioned |
545_nda-20 | 545_nda-20_0 | Q: Receiving Party may retain some Confidential Information even after the return or destruction of Confidential Information.
Text: Exhibit 10.22
NON-DISCLOSURE, NON-COMPETITION, AND NON-SOLICITATION AGREEMENT
This Non-Disclosure, Non-Competition, and Non-Solicitation Agreement (“Agreement”) is entered into effective as of April 1, 2004 (the “Effective Date”), by and between Level 3 Communications, LLC, a Delaware limited liability company (“Level 3” or the “Buyer”), on the one hand, and ICG Communications, Inc. (the “Parent”), a Delaware corporation, and ICG Telecom Group, Inc. (the “Company”), a Delaware corporation, and for and on behalf of any of their direct or indirect parents, subsidiaries, successors, or Affiliates (collectively referred to as “ICG” or the “Sellers”), on the other hand.
RECITALS
A. The Sellers are engaged in conducting a dial-up ISP business whereby the Sellers provide Internet access and other Internet-related services to Internet service providers and their customers.
B. The Buyer and Sellers are parties to an Asset Purchase Agreement (the “Purchase Agreement”) dated as of April 1, 2004, pursuant to which Level 3 is purchasing from Sellers certain of Sellers’ assets (the “Acquired Assets”) used or held for use by Sellers in conducting the Sellers’ dial-up ISP business whereby the Company provides dial-up Internet access to Internet service providers and their customers, excluding the Company’s direct Internet access and primary rate interface businesses (the “Business”), as more fully described therein. Contemporaneous with this Agreement, Buyer and Sellers are closing and consummating the principal transactions contemplated by the Purchase Agreement.
C. Sellers acknowledge that the Buyer would not enter into or close the Purchase Agreement without Sellers’ agreement to the terms and conditions of this Agreement, and the execution of this Agreement by Sellers is a condition precedent to the Buyer’s obligation to close under the Purchase Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the Buyer’s execution and delivery of the Purchase Agreement, the closing thereunder and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
ARTICLE 1 NON-DISCLOSURE, NON-COMPETITION AND NON-SOLICITATION
1.1 Non-Disclosure. Sellers shall not disclose or appropriate for their own use, or for the use of any third party, at any time, any trade secrets or confidential or proprietary information included in or related to the Acquired Assets or the Business as previously operated by Sellers, whether or not developed by Sellers including, without limitation, information pertaining to the customers, vendors, prices, profits, contract terms or operating procedures of Sellers relating to the Business or the Acquired Assets; provided, however, that Sellers may use any such trade secrets and confidential or proprietary information (a) if and to the extent used in their businesses other than the Business and (b) in connection with providing services pursuant to the Transition Services Agreement.
1.2 Non-Competition. For a period of three (3) years from and after the Effective Date (the “Restrictive Period”), Sellers shall not engage, directly or indirectly, through any other entity or with any person (whether as an owner, shareholder, partner, member, director, officer, employee, agent, investor, or otherwise), in any business activity which is in competition with the Business conducted by Buyer during the Restrictive Period. The foregoing restrictions shall, however, apply only for a one-year period from and after the Effective Date with respect to any successor of any Seller who is not engaged in the same type of business as the Business as of the Effective Date and shall not apply at all with respect to any successor, other than Sellers and any of their Affiliates as of the Effective Date, that is engaged in the same type of business as the Business. Because Sellers’ Business is nationwide, Sellers agree that they will not so compete anywhere in the United States (the “Territory”). Notwithstanding the foregoing, Sellers may, during the 60-day period following the Effective Date, provide services in the Business to those customers delineated on Schedule 1.02(c) of the Purchase Agreement, subject to and in accordance with Section 5.08 of the Purchase Agreement; provided such services shall be provided solely pursuant to the customer contracts listed on such Schedule 1.02(c) and the amount of such service shall not be materially greater than that provided to such customers by Sellers during the 60-day period prior to the Effective Date.
1.3 Non-Solicitation. During the Restrictive Period, without the prior written consent of the Buyer (which Buyer may withhold in the exercise of its sole, absolute, and arbitrary discretion), Sellers (including, without limitation, any successors) shall not induce or solicit, directly or indirectly, through any other entity or with any other person, (whether as an owner, shareholder, partner, member, director, officer, employee, agent, investor, or otherwise) any employee of the Buyer or its Affiliates who is involved in the managed modem business conducted by Buyer or any of its Affiliates, including, without limitation, the Business, to terminate the employee’s employment with the Buyer or any such Affiliate.
1.4 Remedies. Any breach of any of the covenants set forth in this Article 1 would result in irreparable damage to the Buyer. Consequently, and without limiting other remedies which may exist for a breach of this Agreement, the Buyer will have the right to enforce such covenants by obtaining a temporary restraining order, preliminary injunction, and permanent injunction restraining any violation hereof, pending or following a trial on the merits, without posting any bond and in addition to all other remedies available to the Buyer at law or in equity.
1.5 Reasonableness of Covenants. Sellers acknowledge and agree that the covenants contained in this Agreement are reasonable in all respects, including without limitation their duration and geographic scope. Sellers expressly waive any defenses as to the reasonableness of such covenants in any action between the parties to enforce this Agreement.
1.6 Certain Definitions. As used in this Agreement:
(a) “Affiliate” means, with respect to any Person, a Person that directly or indirectly, through one or more intermediaries, Controls, is Controlled by, or is under common Control with, such Person; provided that a Person will not be deemed to Control another Person if the only indicia of such Control is voting control of more than 10% but less than 20% of outstanding, publicly traded equity securities of such other Person.
(b) “Control” (including the terms “Controlled by” and “under common Control with”) means, as used with respect to any Person, possession, directly or indirectly or as a trustee or executor, of power to direct or cause the direction of management or policies of such Person (whether through ownership of voting securities, as trustee or executor, by agreement or otherwise).
(c) “Person” means an individual, corporation, partnership, limited liability company, joint venture, trust, unincorporated organization or other entity.
(d) Other terms used but not defined herein have the respective meanings given to such terms in the Purchase Agreement.
ARTICLE 2 MISCELLANEOUS
2.1 Validity. Sellers acknowledge that the Non-Disclosure, Non-Competition and Non-Solicitation covenants set forth in Article 1 are necessary to protect the Buyer from competing efforts and to insure that the Buyer receives the benefits for which it has paid by closing under the Purchase Agreement. If either the Non-Disclosure, Non-Competition or Non-Solicitation provisions contained in this Agreement are held by a court of competent jurisdiction to be unenforceable under applicable law with respect to duration or scope of the agreements, then the Non-Disclosure Agreement, Non-Competition Agreement or Non-Solicitation Agreement, as applicable, will be deemed unenforceable in such part or parts of the Territory for such lesser period of time and for such limited scope as is permissible under applicable law.
2.2 Waiver. The Buyer’s failure to enforce any provision of this Agreement will not in any way be construed as a waiver of any such provision or prevent the Buyer thereafter from enforcing each and every provision of this Agreement.
2.3 Applicable Law, Jurisdiction, and Venue. This Agreement shall be governed by, and construed in accordance with, the Laws of the State of Colorado applicable to agreements made and to be performed wholly within such jurisdiction. The parties hereby irrevocably and unconditionally consent to the exclusive jurisdiction of the courts of the State of Colorado and of the United States of America, in each case located in the County of Denver, for any litigation arising out of or relating to this Agreement, and further agree that service of any process, summons, notice or document by U.S. registered mail to its respective address set forth in this Agreement shall be effective service of process for any litigation brought against it in any such court. The parties hereby irrevocably and unconditionally waive any objection to the laying of venue of any litigation arising out of this Agreement in the courts of the State of Colorado or the United States of America, in each case, located in the County of Denver, and hereby further irrevocably and unconditionally waive and agree not to plead or claim in any such court that any such litigation brought in any such court has been brought in an inconvenient forum.
2.4 Attorney Fees. If any action at law or in equity is brought to enforce or interpret the terms of this Agreement, the prevailing party shall be entitled to its reasonable attorneys’ fees, costs, expert witness fees and all other disbursements in addition to any other relief to which it or he may be entitled.
2.5 Modification. This Agreement may not be amended or modified by the parties except by a written agreement executed by both parties.
2.6 Headings or Captions. Headings or captions contained in this Agreement have been inserted herein only as a matter of convenience and in no way define, limit, extend or describe the scope of this Agreement or the intent of any provision hereof.
2.7 Construction. Unless the context of this Agreement clearly requires otherwise: (i) references to the plural include the singular and vice versa; (ii) references to one gender include all genders; (iii) “including” is not limiting; (iv) “or” has the inclusive meaning represented by the phrase “and/or”; (v) the words “hereof”, “herein”, “hereby”, “hereunder” and similar terms in this Agreement refer to this Agreement as a whole and not to any particular provision of this Agreement; (vi) section and clause references are to this Agreement unless otherwise specified; (vii) reference to any agreement (including this Agreement), document or instrument means such agreement, document or instrument as amended or modified and in effect from time to time in accordance with the terms thereof and, if applicable, the terms hereof; and (vii) general or specific references to any Law mean such Law as amended, modified, codified or reenacted, in whole or in part, and in effect from time to time, unless the effect thereof is to reduce, limit or otherwise prejudicially affect any obligation or any right, power or remedy hereunder, in which case such amendment, modification, codification or reenactment will not, to the maximum extent permitted by Law, form part of this Agreement and is to be disregarded for purposes of the construction and interpretation hereof.
2.8 Counterparts. This Agreement may be executed by the parties on any number of separate counterparts, and all such counterparts so executed constitute one agreement binding on all the parties notwithstanding that all the parties are not signatories to the same counterpart.
2.9 Entire Agreement. This Agreement and the Purchase Agreement and the documents referred to therein constitute the entire agreement among the parties pertaining to the subject matter hereof and supersede all prior agreements, letters of intent, understandings, negotiations and discussions of the parties, whether oral or written.
2.10 Failure or Delay. No failure on the part of any party to exercise, and no delay in exercising, any right, power or privilege hereunder operates as a waiver thereof; nor does any single or partial exercise of any right, power or privilege hereunder preclude any other or further exercise thereof, or the exercise of any other right, power or privilege. No notice to or demand on any party in any case entitles such party to any other or further notice or demand in similar or other circumstances.
2.11 Notice. Any notice required or permitted to be given hereunder shall be sufficient if in writing and if hand delivered, sent by overnight courier, or sent by registered or certified mail, postage prepaid, addressed as follows:
If to the Buyer: Level 3 Communications, LLC
1025 Eldorado Blvd.
Broomfield, Colorado 80021
Attention: General Counsel
With a copy to: Otten, Johnson, Robinson, Neff & Ragonetti, P.C.
1600 U.S. Bank Tower
950 Seventeenth Street
Denver, Colorado 80202
Attention: Steven E. Segal, Esq.
If to Sellers: ICG Communications, Inc.
161 Inverness Drive West
Englewood, Colorado 80112
Attention: General Counsel
[Signatures on following page]
IN WITNESS WHEREOF, Sellers and the Buyer have executed this Agreement effective as of the date first written above.
ICG COMMUNICATIONS, INC.
By:
Name:
Title:
ICG TELECOM GROUP, INC.
By:
Name:
Title:
LEVEL 3 COMMUNICATIONS, LLC
By:
Name: Robert M. Yates
Title: Senior Vice President and
Assistant General Counsel
Signature Page to
| Not mentioned |
545_nda-3 | 545_nda-3_0 | Q: Confidential Information may include verbally conveyed information.
Text: Exhibit 10.22
NON-DISCLOSURE, NON-COMPETITION, AND NON-SOLICITATION AGREEMENT
This Non-Disclosure, Non-Competition, and Non-Solicitation Agreement (“Agreement”) is entered into effective as of April 1, 2004 (the “Effective Date”), by and between Level 3 Communications, LLC, a Delaware limited liability company (“Level 3” or the “Buyer”), on the one hand, and ICG Communications, Inc. (the “Parent”), a Delaware corporation, and ICG Telecom Group, Inc. (the “Company”), a Delaware corporation, and for and on behalf of any of their direct or indirect parents, subsidiaries, successors, or Affiliates (collectively referred to as “ICG” or the “Sellers”), on the other hand.
RECITALS
A. The Sellers are engaged in conducting a dial-up ISP business whereby the Sellers provide Internet access and other Internet-related services to Internet service providers and their customers.
B. The Buyer and Sellers are parties to an Asset Purchase Agreement (the “Purchase Agreement”) dated as of April 1, 2004, pursuant to which Level 3 is purchasing from Sellers certain of Sellers’ assets (the “Acquired Assets”) used or held for use by Sellers in conducting the Sellers’ dial-up ISP business whereby the Company provides dial-up Internet access to Internet service providers and their customers, excluding the Company’s direct Internet access and primary rate interface businesses (the “Business”), as more fully described therein. Contemporaneous with this Agreement, Buyer and Sellers are closing and consummating the principal transactions contemplated by the Purchase Agreement.
C. Sellers acknowledge that the Buyer would not enter into or close the Purchase Agreement without Sellers’ agreement to the terms and conditions of this Agreement, and the execution of this Agreement by Sellers is a condition precedent to the Buyer’s obligation to close under the Purchase Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the Buyer’s execution and delivery of the Purchase Agreement, the closing thereunder and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
ARTICLE 1 NON-DISCLOSURE, NON-COMPETITION AND NON-SOLICITATION
1.1 Non-Disclosure. Sellers shall not disclose or appropriate for their own use, or for the use of any third party, at any time, any trade secrets or confidential or proprietary information included in or related to the Acquired Assets or the Business as previously operated by Sellers, whether or not developed by Sellers including, without limitation, information pertaining to the customers, vendors, prices, profits, contract terms or operating procedures of Sellers relating to the Business or the Acquired Assets; provided, however, that Sellers may use any such trade secrets and confidential or proprietary information (a) if and to the extent used in their businesses other than the Business and (b) in connection with providing services pursuant to the Transition Services Agreement.
1.2 Non-Competition. For a period of three (3) years from and after the Effective Date (the “Restrictive Period”), Sellers shall not engage, directly or indirectly, through any other entity or with any person (whether as an owner, shareholder, partner, member, director, officer, employee, agent, investor, or otherwise), in any business activity which is in competition with the Business conducted by Buyer during the Restrictive Period. The foregoing restrictions shall, however, apply only for a one-year period from and after the Effective Date with respect to any successor of any Seller who is not engaged in the same type of business as the Business as of the Effective Date and shall not apply at all with respect to any successor, other than Sellers and any of their Affiliates as of the Effective Date, that is engaged in the same type of business as the Business. Because Sellers’ Business is nationwide, Sellers agree that they will not so compete anywhere in the United States (the “Territory”). Notwithstanding the foregoing, Sellers may, during the 60-day period following the Effective Date, provide services in the Business to those customers delineated on Schedule 1.02(c) of the Purchase Agreement, subject to and in accordance with Section 5.08 of the Purchase Agreement; provided such services shall be provided solely pursuant to the customer contracts listed on such Schedule 1.02(c) and the amount of such service shall not be materially greater than that provided to such customers by Sellers during the 60-day period prior to the Effective Date.
1.3 Non-Solicitation. During the Restrictive Period, without the prior written consent of the Buyer (which Buyer may withhold in the exercise of its sole, absolute, and arbitrary discretion), Sellers (including, without limitation, any successors) shall not induce or solicit, directly or indirectly, through any other entity or with any other person, (whether as an owner, shareholder, partner, member, director, officer, employee, agent, investor, or otherwise) any employee of the Buyer or its Affiliates who is involved in the managed modem business conducted by Buyer or any of its Affiliates, including, without limitation, the Business, to terminate the employee’s employment with the Buyer or any such Affiliate.
1.4 Remedies. Any breach of any of the covenants set forth in this Article 1 would result in irreparable damage to the Buyer. Consequently, and without limiting other remedies which may exist for a breach of this Agreement, the Buyer will have the right to enforce such covenants by obtaining a temporary restraining order, preliminary injunction, and permanent injunction restraining any violation hereof, pending or following a trial on the merits, without posting any bond and in addition to all other remedies available to the Buyer at law or in equity.
1.5 Reasonableness of Covenants. Sellers acknowledge and agree that the covenants contained in this Agreement are reasonable in all respects, including without limitation their duration and geographic scope. Sellers expressly waive any defenses as to the reasonableness of such covenants in any action between the parties to enforce this Agreement.
1.6 Certain Definitions. As used in this Agreement:
(a) “Affiliate” means, with respect to any Person, a Person that directly or indirectly, through one or more intermediaries, Controls, is Controlled by, or is under common Control with, such Person; provided that a Person will not be deemed to Control another Person if the only indicia of such Control is voting control of more than 10% but less than 20% of outstanding, publicly traded equity securities of such other Person.
(b) “Control” (including the terms “Controlled by” and “under common Control with”) means, as used with respect to any Person, possession, directly or indirectly or as a trustee or executor, of power to direct or cause the direction of management or policies of such Person (whether through ownership of voting securities, as trustee or executor, by agreement or otherwise).
(c) “Person” means an individual, corporation, partnership, limited liability company, joint venture, trust, unincorporated organization or other entity.
(d) Other terms used but not defined herein have the respective meanings given to such terms in the Purchase Agreement.
ARTICLE 2 MISCELLANEOUS
2.1 Validity. Sellers acknowledge that the Non-Disclosure, Non-Competition and Non-Solicitation covenants set forth in Article 1 are necessary to protect the Buyer from competing efforts and to insure that the Buyer receives the benefits for which it has paid by closing under the Purchase Agreement. If either the Non-Disclosure, Non-Competition or Non-Solicitation provisions contained in this Agreement are held by a court of competent jurisdiction to be unenforceable under applicable law with respect to duration or scope of the agreements, then the Non-Disclosure Agreement, Non-Competition Agreement or Non-Solicitation Agreement, as applicable, will be deemed unenforceable in such part or parts of the Territory for such lesser period of time and for such limited scope as is permissible under applicable law.
2.2 Waiver. The Buyer’s failure to enforce any provision of this Agreement will not in any way be construed as a waiver of any such provision or prevent the Buyer thereafter from enforcing each and every provision of this Agreement.
2.3 Applicable Law, Jurisdiction, and Venue. This Agreement shall be governed by, and construed in accordance with, the Laws of the State of Colorado applicable to agreements made and to be performed wholly within such jurisdiction. The parties hereby irrevocably and unconditionally consent to the exclusive jurisdiction of the courts of the State of Colorado and of the United States of America, in each case located in the County of Denver, for any litigation arising out of or relating to this Agreement, and further agree that service of any process, summons, notice or document by U.S. registered mail to its respective address set forth in this Agreement shall be effective service of process for any litigation brought against it in any such court. The parties hereby irrevocably and unconditionally waive any objection to the laying of venue of any litigation arising out of this Agreement in the courts of the State of Colorado or the United States of America, in each case, located in the County of Denver, and hereby further irrevocably and unconditionally waive and agree not to plead or claim in any such court that any such litigation brought in any such court has been brought in an inconvenient forum.
2.4 Attorney Fees. If any action at law or in equity is brought to enforce or interpret the terms of this Agreement, the prevailing party shall be entitled to its reasonable attorneys’ fees, costs, expert witness fees and all other disbursements in addition to any other relief to which it or he may be entitled.
2.5 Modification. This Agreement may not be amended or modified by the parties except by a written agreement executed by both parties.
2.6 Headings or Captions. Headings or captions contained in this Agreement have been inserted herein only as a matter of convenience and in no way define, limit, extend or describe the scope of this Agreement or the intent of any provision hereof.
2.7 Construction. Unless the context of this Agreement clearly requires otherwise: (i) references to the plural include the singular and vice versa; (ii) references to one gender include all genders; (iii) “including” is not limiting; (iv) “or” has the inclusive meaning represented by the phrase “and/or”; (v) the words “hereof”, “herein”, “hereby”, “hereunder” and similar terms in this Agreement refer to this Agreement as a whole and not to any particular provision of this Agreement; (vi) section and clause references are to this Agreement unless otherwise specified; (vii) reference to any agreement (including this Agreement), document or instrument means such agreement, document or instrument as amended or modified and in effect from time to time in accordance with the terms thereof and, if applicable, the terms hereof; and (vii) general or specific references to any Law mean such Law as amended, modified, codified or reenacted, in whole or in part, and in effect from time to time, unless the effect thereof is to reduce, limit or otherwise prejudicially affect any obligation or any right, power or remedy hereunder, in which case such amendment, modification, codification or reenactment will not, to the maximum extent permitted by Law, form part of this Agreement and is to be disregarded for purposes of the construction and interpretation hereof.
2.8 Counterparts. This Agreement may be executed by the parties on any number of separate counterparts, and all such counterparts so executed constitute one agreement binding on all the parties notwithstanding that all the parties are not signatories to the same counterpart.
2.9 Entire Agreement. This Agreement and the Purchase Agreement and the documents referred to therein constitute the entire agreement among the parties pertaining to the subject matter hereof and supersede all prior agreements, letters of intent, understandings, negotiations and discussions of the parties, whether oral or written.
2.10 Failure or Delay. No failure on the part of any party to exercise, and no delay in exercising, any right, power or privilege hereunder operates as a waiver thereof; nor does any single or partial exercise of any right, power or privilege hereunder preclude any other or further exercise thereof, or the exercise of any other right, power or privilege. No notice to or demand on any party in any case entitles such party to any other or further notice or demand in similar or other circumstances.
2.11 Notice. Any notice required or permitted to be given hereunder shall be sufficient if in writing and if hand delivered, sent by overnight courier, or sent by registered or certified mail, postage prepaid, addressed as follows:
If to the Buyer: Level 3 Communications, LLC
1025 Eldorado Blvd.
Broomfield, Colorado 80021
Attention: General Counsel
With a copy to: Otten, Johnson, Robinson, Neff & Ragonetti, P.C.
1600 U.S. Bank Tower
950 Seventeenth Street
Denver, Colorado 80202
Attention: Steven E. Segal, Esq.
If to Sellers: ICG Communications, Inc.
161 Inverness Drive West
Englewood, Colorado 80112
Attention: General Counsel
[Signatures on following page]
IN WITNESS WHEREOF, Sellers and the Buyer have executed this Agreement effective as of the date first written above.
ICG COMMUNICATIONS, INC.
By:
Name:
Title:
ICG TELECOM GROUP, INC.
By:
Name:
Title:
LEVEL 3 COMMUNICATIONS, LLC
By:
Name: Robert M. Yates
Title: Senior Vice President and
Assistant General Counsel
Signature Page to
| Not mentioned |
545_nda-18 | 545_nda-18_0 | Q: Receiving Party shall not solicit some of Disclosing Party's representatives.
Text: Exhibit 10.22
NON-DISCLOSURE, NON-COMPETITION, AND NON-SOLICITATION AGREEMENT
This Non-Disclosure, Non-Competition, and Non-Solicitation Agreement (“Agreement”) is entered into effective as of April 1, 2004 (the “Effective Date”), by and between Level 3 Communications, LLC, a Delaware limited liability company (“Level 3” or the “Buyer”), on the one hand, and ICG Communications, Inc. (the “Parent”), a Delaware corporation, and ICG Telecom Group, Inc. (the “Company”), a Delaware corporation, and for and on behalf of any of their direct or indirect parents, subsidiaries, successors, or Affiliates (collectively referred to as “ICG” or the “Sellers”), on the other hand.
RECITALS
A. The Sellers are engaged in conducting a dial-up ISP business whereby the Sellers provide Internet access and other Internet-related services to Internet service providers and their customers.
B. The Buyer and Sellers are parties to an Asset Purchase Agreement (the “Purchase Agreement”) dated as of April 1, 2004, pursuant to which Level 3 is purchasing from Sellers certain of Sellers’ assets (the “Acquired Assets”) used or held for use by Sellers in conducting the Sellers’ dial-up ISP business whereby the Company provides dial-up Internet access to Internet service providers and their customers, excluding the Company’s direct Internet access and primary rate interface businesses (the “Business”), as more fully described therein. Contemporaneous with this Agreement, Buyer and Sellers are closing and consummating the principal transactions contemplated by the Purchase Agreement.
C. Sellers acknowledge that the Buyer would not enter into or close the Purchase Agreement without Sellers’ agreement to the terms and conditions of this Agreement, and the execution of this Agreement by Sellers is a condition precedent to the Buyer’s obligation to close under the Purchase Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the Buyer’s execution and delivery of the Purchase Agreement, the closing thereunder and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
ARTICLE 1 NON-DISCLOSURE, NON-COMPETITION AND NON-SOLICITATION
1.1 Non-Disclosure. Sellers shall not disclose or appropriate for their own use, or for the use of any third party, at any time, any trade secrets or confidential or proprietary information included in or related to the Acquired Assets or the Business as previously operated by Sellers, whether or not developed by Sellers including, without limitation, information pertaining to the customers, vendors, prices, profits, contract terms or operating procedures of Sellers relating to the Business or the Acquired Assets; provided, however, that Sellers may use any such trade secrets and confidential or proprietary information (a) if and to the extent used in their businesses other than the Business and (b) in connection with providing services pursuant to the Transition Services Agreement.
1.2 Non-Competition. For a period of three (3) years from and after the Effective Date (the “Restrictive Period”), Sellers shall not engage, directly or indirectly, through any other entity or with any person (whether as an owner, shareholder, partner, member, director, officer, employee, agent, investor, or otherwise), in any business activity which is in competition with the Business conducted by Buyer during the Restrictive Period. The foregoing restrictions shall, however, apply only for a one-year period from and after the Effective Date with respect to any successor of any Seller who is not engaged in the same type of business as the Business as of the Effective Date and shall not apply at all with respect to any successor, other than Sellers and any of their Affiliates as of the Effective Date, that is engaged in the same type of business as the Business. Because Sellers’ Business is nationwide, Sellers agree that they will not so compete anywhere in the United States (the “Territory”). Notwithstanding the foregoing, Sellers may, during the 60-day period following the Effective Date, provide services in the Business to those customers delineated on Schedule 1.02(c) of the Purchase Agreement, subject to and in accordance with Section 5.08 of the Purchase Agreement; provided such services shall be provided solely pursuant to the customer contracts listed on such Schedule 1.02(c) and the amount of such service shall not be materially greater than that provided to such customers by Sellers during the 60-day period prior to the Effective Date.
1.3 Non-Solicitation. During the Restrictive Period, without the prior written consent of the Buyer (which Buyer may withhold in the exercise of its sole, absolute, and arbitrary discretion), Sellers (including, without limitation, any successors) shall not induce or solicit, directly or indirectly, through any other entity or with any other person, (whether as an owner, shareholder, partner, member, director, officer, employee, agent, investor, or otherwise) any employee of the Buyer or its Affiliates who is involved in the managed modem business conducted by Buyer or any of its Affiliates, including, without limitation, the Business, to terminate the employee’s employment with the Buyer or any such Affiliate.
1.4 Remedies. Any breach of any of the covenants set forth in this Article 1 would result in irreparable damage to the Buyer. Consequently, and without limiting other remedies which may exist for a breach of this Agreement, the Buyer will have the right to enforce such covenants by obtaining a temporary restraining order, preliminary injunction, and permanent injunction restraining any violation hereof, pending or following a trial on the merits, without posting any bond and in addition to all other remedies available to the Buyer at law or in equity.
1.5 Reasonableness of Covenants. Sellers acknowledge and agree that the covenants contained in this Agreement are reasonable in all respects, including without limitation their duration and geographic scope. Sellers expressly waive any defenses as to the reasonableness of such covenants in any action between the parties to enforce this Agreement.
1.6 Certain Definitions. As used in this Agreement:
(a) “Affiliate” means, with respect to any Person, a Person that directly or indirectly, through one or more intermediaries, Controls, is Controlled by, or is under common Control with, such Person; provided that a Person will not be deemed to Control another Person if the only indicia of such Control is voting control of more than 10% but less than 20% of outstanding, publicly traded equity securities of such other Person.
(b) “Control” (including the terms “Controlled by” and “under common Control with”) means, as used with respect to any Person, possession, directly or indirectly or as a trustee or executor, of power to direct or cause the direction of management or policies of such Person (whether through ownership of voting securities, as trustee or executor, by agreement or otherwise).
(c) “Person” means an individual, corporation, partnership, limited liability company, joint venture, trust, unincorporated organization or other entity.
(d) Other terms used but not defined herein have the respective meanings given to such terms in the Purchase Agreement.
ARTICLE 2 MISCELLANEOUS
2.1 Validity. Sellers acknowledge that the Non-Disclosure, Non-Competition and Non-Solicitation covenants set forth in Article 1 are necessary to protect the Buyer from competing efforts and to insure that the Buyer receives the benefits for which it has paid by closing under the Purchase Agreement. If either the Non-Disclosure, Non-Competition or Non-Solicitation provisions contained in this Agreement are held by a court of competent jurisdiction to be unenforceable under applicable law with respect to duration or scope of the agreements, then the Non-Disclosure Agreement, Non-Competition Agreement or Non-Solicitation Agreement, as applicable, will be deemed unenforceable in such part or parts of the Territory for such lesser period of time and for such limited scope as is permissible under applicable law.
2.2 Waiver. The Buyer’s failure to enforce any provision of this Agreement will not in any way be construed as a waiver of any such provision or prevent the Buyer thereafter from enforcing each and every provision of this Agreement.
2.3 Applicable Law, Jurisdiction, and Venue. This Agreement shall be governed by, and construed in accordance with, the Laws of the State of Colorado applicable to agreements made and to be performed wholly within such jurisdiction. The parties hereby irrevocably and unconditionally consent to the exclusive jurisdiction of the courts of the State of Colorado and of the United States of America, in each case located in the County of Denver, for any litigation arising out of or relating to this Agreement, and further agree that service of any process, summons, notice or document by U.S. registered mail to its respective address set forth in this Agreement shall be effective service of process for any litigation brought against it in any such court. The parties hereby irrevocably and unconditionally waive any objection to the laying of venue of any litigation arising out of this Agreement in the courts of the State of Colorado or the United States of America, in each case, located in the County of Denver, and hereby further irrevocably and unconditionally waive and agree not to plead or claim in any such court that any such litigation brought in any such court has been brought in an inconvenient forum.
2.4 Attorney Fees. If any action at law or in equity is brought to enforce or interpret the terms of this Agreement, the prevailing party shall be entitled to its reasonable attorneys’ fees, costs, expert witness fees and all other disbursements in addition to any other relief to which it or he may be entitled.
2.5 Modification. This Agreement may not be amended or modified by the parties except by a written agreement executed by both parties.
2.6 Headings or Captions. Headings or captions contained in this Agreement have been inserted herein only as a matter of convenience and in no way define, limit, extend or describe the scope of this Agreement or the intent of any provision hereof.
2.7 Construction. Unless the context of this Agreement clearly requires otherwise: (i) references to the plural include the singular and vice versa; (ii) references to one gender include all genders; (iii) “including” is not limiting; (iv) “or” has the inclusive meaning represented by the phrase “and/or”; (v) the words “hereof”, “herein”, “hereby”, “hereunder” and similar terms in this Agreement refer to this Agreement as a whole and not to any particular provision of this Agreement; (vi) section and clause references are to this Agreement unless otherwise specified; (vii) reference to any agreement (including this Agreement), document or instrument means such agreement, document or instrument as amended or modified and in effect from time to time in accordance with the terms thereof and, if applicable, the terms hereof; and (vii) general or specific references to any Law mean such Law as amended, modified, codified or reenacted, in whole or in part, and in effect from time to time, unless the effect thereof is to reduce, limit or otherwise prejudicially affect any obligation or any right, power or remedy hereunder, in which case such amendment, modification, codification or reenactment will not, to the maximum extent permitted by Law, form part of this Agreement and is to be disregarded for purposes of the construction and interpretation hereof.
2.8 Counterparts. This Agreement may be executed by the parties on any number of separate counterparts, and all such counterparts so executed constitute one agreement binding on all the parties notwithstanding that all the parties are not signatories to the same counterpart.
2.9 Entire Agreement. This Agreement and the Purchase Agreement and the documents referred to therein constitute the entire agreement among the parties pertaining to the subject matter hereof and supersede all prior agreements, letters of intent, understandings, negotiations and discussions of the parties, whether oral or written.
2.10 Failure or Delay. No failure on the part of any party to exercise, and no delay in exercising, any right, power or privilege hereunder operates as a waiver thereof; nor does any single or partial exercise of any right, power or privilege hereunder preclude any other or further exercise thereof, or the exercise of any other right, power or privilege. No notice to or demand on any party in any case entitles such party to any other or further notice or demand in similar or other circumstances.
2.11 Notice. Any notice required or permitted to be given hereunder shall be sufficient if in writing and if hand delivered, sent by overnight courier, or sent by registered or certified mail, postage prepaid, addressed as follows:
If to the Buyer: Level 3 Communications, LLC
1025 Eldorado Blvd.
Broomfield, Colorado 80021
Attention: General Counsel
With a copy to: Otten, Johnson, Robinson, Neff & Ragonetti, P.C.
1600 U.S. Bank Tower
950 Seventeenth Street
Denver, Colorado 80202
Attention: Steven E. Segal, Esq.
If to Sellers: ICG Communications, Inc.
161 Inverness Drive West
Englewood, Colorado 80112
Attention: General Counsel
[Signatures on following page]
IN WITNESS WHEREOF, Sellers and the Buyer have executed this Agreement effective as of the date first written above.
ICG COMMUNICATIONS, INC.
By:
Name:
Title:
ICG TELECOM GROUP, INC.
By:
Name:
Title:
LEVEL 3 COMMUNICATIONS, LLC
By:
Name: Robert M. Yates
Title: Senior Vice President and
Assistant General Counsel
Signature Page to
| Entailment |
545_nda-7 | 545_nda-7_0 | Q: Receiving Party may share some Confidential Information with some third-parties (including consultants, agents and professional advisors).
Text: Exhibit 10.22
NON-DISCLOSURE, NON-COMPETITION, AND NON-SOLICITATION AGREEMENT
This Non-Disclosure, Non-Competition, and Non-Solicitation Agreement (“Agreement”) is entered into effective as of April 1, 2004 (the “Effective Date”), by and between Level 3 Communications, LLC, a Delaware limited liability company (“Level 3” or the “Buyer”), on the one hand, and ICG Communications, Inc. (the “Parent”), a Delaware corporation, and ICG Telecom Group, Inc. (the “Company”), a Delaware corporation, and for and on behalf of any of their direct or indirect parents, subsidiaries, successors, or Affiliates (collectively referred to as “ICG” or the “Sellers”), on the other hand.
RECITALS
A. The Sellers are engaged in conducting a dial-up ISP business whereby the Sellers provide Internet access and other Internet-related services to Internet service providers and their customers.
B. The Buyer and Sellers are parties to an Asset Purchase Agreement (the “Purchase Agreement”) dated as of April 1, 2004, pursuant to which Level 3 is purchasing from Sellers certain of Sellers’ assets (the “Acquired Assets”) used or held for use by Sellers in conducting the Sellers’ dial-up ISP business whereby the Company provides dial-up Internet access to Internet service providers and their customers, excluding the Company’s direct Internet access and primary rate interface businesses (the “Business”), as more fully described therein. Contemporaneous with this Agreement, Buyer and Sellers are closing and consummating the principal transactions contemplated by the Purchase Agreement.
C. Sellers acknowledge that the Buyer would not enter into or close the Purchase Agreement without Sellers’ agreement to the terms and conditions of this Agreement, and the execution of this Agreement by Sellers is a condition precedent to the Buyer’s obligation to close under the Purchase Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the Buyer’s execution and delivery of the Purchase Agreement, the closing thereunder and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
ARTICLE 1 NON-DISCLOSURE, NON-COMPETITION AND NON-SOLICITATION
1.1 Non-Disclosure. Sellers shall not disclose or appropriate for their own use, or for the use of any third party, at any time, any trade secrets or confidential or proprietary information included in or related to the Acquired Assets or the Business as previously operated by Sellers, whether or not developed by Sellers including, without limitation, information pertaining to the customers, vendors, prices, profits, contract terms or operating procedures of Sellers relating to the Business or the Acquired Assets; provided, however, that Sellers may use any such trade secrets and confidential or proprietary information (a) if and to the extent used in their businesses other than the Business and (b) in connection with providing services pursuant to the Transition Services Agreement.
1.2 Non-Competition. For a period of three (3) years from and after the Effective Date (the “Restrictive Period”), Sellers shall not engage, directly or indirectly, through any other entity or with any person (whether as an owner, shareholder, partner, member, director, officer, employee, agent, investor, or otherwise), in any business activity which is in competition with the Business conducted by Buyer during the Restrictive Period. The foregoing restrictions shall, however, apply only for a one-year period from and after the Effective Date with respect to any successor of any Seller who is not engaged in the same type of business as the Business as of the Effective Date and shall not apply at all with respect to any successor, other than Sellers and any of their Affiliates as of the Effective Date, that is engaged in the same type of business as the Business. Because Sellers’ Business is nationwide, Sellers agree that they will not so compete anywhere in the United States (the “Territory”). Notwithstanding the foregoing, Sellers may, during the 60-day period following the Effective Date, provide services in the Business to those customers delineated on Schedule 1.02(c) of the Purchase Agreement, subject to and in accordance with Section 5.08 of the Purchase Agreement; provided such services shall be provided solely pursuant to the customer contracts listed on such Schedule 1.02(c) and the amount of such service shall not be materially greater than that provided to such customers by Sellers during the 60-day period prior to the Effective Date.
1.3 Non-Solicitation. During the Restrictive Period, without the prior written consent of the Buyer (which Buyer may withhold in the exercise of its sole, absolute, and arbitrary discretion), Sellers (including, without limitation, any successors) shall not induce or solicit, directly or indirectly, through any other entity or with any other person, (whether as an owner, shareholder, partner, member, director, officer, employee, agent, investor, or otherwise) any employee of the Buyer or its Affiliates who is involved in the managed modem business conducted by Buyer or any of its Affiliates, including, without limitation, the Business, to terminate the employee’s employment with the Buyer or any such Affiliate.
1.4 Remedies. Any breach of any of the covenants set forth in this Article 1 would result in irreparable damage to the Buyer. Consequently, and without limiting other remedies which may exist for a breach of this Agreement, the Buyer will have the right to enforce such covenants by obtaining a temporary restraining order, preliminary injunction, and permanent injunction restraining any violation hereof, pending or following a trial on the merits, without posting any bond and in addition to all other remedies available to the Buyer at law or in equity.
1.5 Reasonableness of Covenants. Sellers acknowledge and agree that the covenants contained in this Agreement are reasonable in all respects, including without limitation their duration and geographic scope. Sellers expressly waive any defenses as to the reasonableness of such covenants in any action between the parties to enforce this Agreement.
1.6 Certain Definitions. As used in this Agreement:
(a) “Affiliate” means, with respect to any Person, a Person that directly or indirectly, through one or more intermediaries, Controls, is Controlled by, or is under common Control with, such Person; provided that a Person will not be deemed to Control another Person if the only indicia of such Control is voting control of more than 10% but less than 20% of outstanding, publicly traded equity securities of such other Person.
(b) “Control” (including the terms “Controlled by” and “under common Control with”) means, as used with respect to any Person, possession, directly or indirectly or as a trustee or executor, of power to direct or cause the direction of management or policies of such Person (whether through ownership of voting securities, as trustee or executor, by agreement or otherwise).
(c) “Person” means an individual, corporation, partnership, limited liability company, joint venture, trust, unincorporated organization or other entity.
(d) Other terms used but not defined herein have the respective meanings given to such terms in the Purchase Agreement.
ARTICLE 2 MISCELLANEOUS
2.1 Validity. Sellers acknowledge that the Non-Disclosure, Non-Competition and Non-Solicitation covenants set forth in Article 1 are necessary to protect the Buyer from competing efforts and to insure that the Buyer receives the benefits for which it has paid by closing under the Purchase Agreement. If either the Non-Disclosure, Non-Competition or Non-Solicitation provisions contained in this Agreement are held by a court of competent jurisdiction to be unenforceable under applicable law with respect to duration or scope of the agreements, then the Non-Disclosure Agreement, Non-Competition Agreement or Non-Solicitation Agreement, as applicable, will be deemed unenforceable in such part or parts of the Territory for such lesser period of time and for such limited scope as is permissible under applicable law.
2.2 Waiver. The Buyer’s failure to enforce any provision of this Agreement will not in any way be construed as a waiver of any such provision or prevent the Buyer thereafter from enforcing each and every provision of this Agreement.
2.3 Applicable Law, Jurisdiction, and Venue. This Agreement shall be governed by, and construed in accordance with, the Laws of the State of Colorado applicable to agreements made and to be performed wholly within such jurisdiction. The parties hereby irrevocably and unconditionally consent to the exclusive jurisdiction of the courts of the State of Colorado and of the United States of America, in each case located in the County of Denver, for any litigation arising out of or relating to this Agreement, and further agree that service of any process, summons, notice or document by U.S. registered mail to its respective address set forth in this Agreement shall be effective service of process for any litigation brought against it in any such court. The parties hereby irrevocably and unconditionally waive any objection to the laying of venue of any litigation arising out of this Agreement in the courts of the State of Colorado or the United States of America, in each case, located in the County of Denver, and hereby further irrevocably and unconditionally waive and agree not to plead or claim in any such court that any such litigation brought in any such court has been brought in an inconvenient forum.
2.4 Attorney Fees. If any action at law or in equity is brought to enforce or interpret the terms of this Agreement, the prevailing party shall be entitled to its reasonable attorneys’ fees, costs, expert witness fees and all other disbursements in addition to any other relief to which it or he may be entitled.
2.5 Modification. This Agreement may not be amended or modified by the parties except by a written agreement executed by both parties.
2.6 Headings or Captions. Headings or captions contained in this Agreement have been inserted herein only as a matter of convenience and in no way define, limit, extend or describe the scope of this Agreement or the intent of any provision hereof.
2.7 Construction. Unless the context of this Agreement clearly requires otherwise: (i) references to the plural include the singular and vice versa; (ii) references to one gender include all genders; (iii) “including” is not limiting; (iv) “or” has the inclusive meaning represented by the phrase “and/or”; (v) the words “hereof”, “herein”, “hereby”, “hereunder” and similar terms in this Agreement refer to this Agreement as a whole and not to any particular provision of this Agreement; (vi) section and clause references are to this Agreement unless otherwise specified; (vii) reference to any agreement (including this Agreement), document or instrument means such agreement, document or instrument as amended or modified and in effect from time to time in accordance with the terms thereof and, if applicable, the terms hereof; and (vii) general or specific references to any Law mean such Law as amended, modified, codified or reenacted, in whole or in part, and in effect from time to time, unless the effect thereof is to reduce, limit or otherwise prejudicially affect any obligation or any right, power or remedy hereunder, in which case such amendment, modification, codification or reenactment will not, to the maximum extent permitted by Law, form part of this Agreement and is to be disregarded for purposes of the construction and interpretation hereof.
2.8 Counterparts. This Agreement may be executed by the parties on any number of separate counterparts, and all such counterparts so executed constitute one agreement binding on all the parties notwithstanding that all the parties are not signatories to the same counterpart.
2.9 Entire Agreement. This Agreement and the Purchase Agreement and the documents referred to therein constitute the entire agreement among the parties pertaining to the subject matter hereof and supersede all prior agreements, letters of intent, understandings, negotiations and discussions of the parties, whether oral or written.
2.10 Failure or Delay. No failure on the part of any party to exercise, and no delay in exercising, any right, power or privilege hereunder operates as a waiver thereof; nor does any single or partial exercise of any right, power or privilege hereunder preclude any other or further exercise thereof, or the exercise of any other right, power or privilege. No notice to or demand on any party in any case entitles such party to any other or further notice or demand in similar or other circumstances.
2.11 Notice. Any notice required or permitted to be given hereunder shall be sufficient if in writing and if hand delivered, sent by overnight courier, or sent by registered or certified mail, postage prepaid, addressed as follows:
If to the Buyer: Level 3 Communications, LLC
1025 Eldorado Blvd.
Broomfield, Colorado 80021
Attention: General Counsel
With a copy to: Otten, Johnson, Robinson, Neff & Ragonetti, P.C.
1600 U.S. Bank Tower
950 Seventeenth Street
Denver, Colorado 80202
Attention: Steven E. Segal, Esq.
If to Sellers: ICG Communications, Inc.
161 Inverness Drive West
Englewood, Colorado 80112
Attention: General Counsel
[Signatures on following page]
IN WITNESS WHEREOF, Sellers and the Buyer have executed this Agreement effective as of the date first written above.
ICG COMMUNICATIONS, INC.
By:
Name:
Title:
ICG TELECOM GROUP, INC.
By:
Name:
Title:
LEVEL 3 COMMUNICATIONS, LLC
By:
Name: Robert M. Yates
Title: Senior Vice President and
Assistant General Counsel
Signature Page to
| Contradiction |
545_nda-17 | 545_nda-17_0 | Q: Receiving Party may create a copy of some Confidential Information in some circumstances.
Text: Exhibit 10.22
NON-DISCLOSURE, NON-COMPETITION, AND NON-SOLICITATION AGREEMENT
This Non-Disclosure, Non-Competition, and Non-Solicitation Agreement (“Agreement”) is entered into effective as of April 1, 2004 (the “Effective Date”), by and between Level 3 Communications, LLC, a Delaware limited liability company (“Level 3” or the “Buyer”), on the one hand, and ICG Communications, Inc. (the “Parent”), a Delaware corporation, and ICG Telecom Group, Inc. (the “Company”), a Delaware corporation, and for and on behalf of any of their direct or indirect parents, subsidiaries, successors, or Affiliates (collectively referred to as “ICG” or the “Sellers”), on the other hand.
RECITALS
A. The Sellers are engaged in conducting a dial-up ISP business whereby the Sellers provide Internet access and other Internet-related services to Internet service providers and their customers.
B. The Buyer and Sellers are parties to an Asset Purchase Agreement (the “Purchase Agreement”) dated as of April 1, 2004, pursuant to which Level 3 is purchasing from Sellers certain of Sellers’ assets (the “Acquired Assets”) used or held for use by Sellers in conducting the Sellers’ dial-up ISP business whereby the Company provides dial-up Internet access to Internet service providers and their customers, excluding the Company’s direct Internet access and primary rate interface businesses (the “Business”), as more fully described therein. Contemporaneous with this Agreement, Buyer and Sellers are closing and consummating the principal transactions contemplated by the Purchase Agreement.
C. Sellers acknowledge that the Buyer would not enter into or close the Purchase Agreement without Sellers’ agreement to the terms and conditions of this Agreement, and the execution of this Agreement by Sellers is a condition precedent to the Buyer’s obligation to close under the Purchase Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the Buyer’s execution and delivery of the Purchase Agreement, the closing thereunder and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
ARTICLE 1 NON-DISCLOSURE, NON-COMPETITION AND NON-SOLICITATION
1.1 Non-Disclosure. Sellers shall not disclose or appropriate for their own use, or for the use of any third party, at any time, any trade secrets or confidential or proprietary information included in or related to the Acquired Assets or the Business as previously operated by Sellers, whether or not developed by Sellers including, without limitation, information pertaining to the customers, vendors, prices, profits, contract terms or operating procedures of Sellers relating to the Business or the Acquired Assets; provided, however, that Sellers may use any such trade secrets and confidential or proprietary information (a) if and to the extent used in their businesses other than the Business and (b) in connection with providing services pursuant to the Transition Services Agreement.
1.2 Non-Competition. For a period of three (3) years from and after the Effective Date (the “Restrictive Period”), Sellers shall not engage, directly or indirectly, through any other entity or with any person (whether as an owner, shareholder, partner, member, director, officer, employee, agent, investor, or otherwise), in any business activity which is in competition with the Business conducted by Buyer during the Restrictive Period. The foregoing restrictions shall, however, apply only for a one-year period from and after the Effective Date with respect to any successor of any Seller who is not engaged in the same type of business as the Business as of the Effective Date and shall not apply at all with respect to any successor, other than Sellers and any of their Affiliates as of the Effective Date, that is engaged in the same type of business as the Business. Because Sellers’ Business is nationwide, Sellers agree that they will not so compete anywhere in the United States (the “Territory”). Notwithstanding the foregoing, Sellers may, during the 60-day period following the Effective Date, provide services in the Business to those customers delineated on Schedule 1.02(c) of the Purchase Agreement, subject to and in accordance with Section 5.08 of the Purchase Agreement; provided such services shall be provided solely pursuant to the customer contracts listed on such Schedule 1.02(c) and the amount of such service shall not be materially greater than that provided to such customers by Sellers during the 60-day period prior to the Effective Date.
1.3 Non-Solicitation. During the Restrictive Period, without the prior written consent of the Buyer (which Buyer may withhold in the exercise of its sole, absolute, and arbitrary discretion), Sellers (including, without limitation, any successors) shall not induce or solicit, directly or indirectly, through any other entity or with any other person, (whether as an owner, shareholder, partner, member, director, officer, employee, agent, investor, or otherwise) any employee of the Buyer or its Affiliates who is involved in the managed modem business conducted by Buyer or any of its Affiliates, including, without limitation, the Business, to terminate the employee’s employment with the Buyer or any such Affiliate.
1.4 Remedies. Any breach of any of the covenants set forth in this Article 1 would result in irreparable damage to the Buyer. Consequently, and without limiting other remedies which may exist for a breach of this Agreement, the Buyer will have the right to enforce such covenants by obtaining a temporary restraining order, preliminary injunction, and permanent injunction restraining any violation hereof, pending or following a trial on the merits, without posting any bond and in addition to all other remedies available to the Buyer at law or in equity.
1.5 Reasonableness of Covenants. Sellers acknowledge and agree that the covenants contained in this Agreement are reasonable in all respects, including without limitation their duration and geographic scope. Sellers expressly waive any defenses as to the reasonableness of such covenants in any action between the parties to enforce this Agreement.
1.6 Certain Definitions. As used in this Agreement:
(a) “Affiliate” means, with respect to any Person, a Person that directly or indirectly, through one or more intermediaries, Controls, is Controlled by, or is under common Control with, such Person; provided that a Person will not be deemed to Control another Person if the only indicia of such Control is voting control of more than 10% but less than 20% of outstanding, publicly traded equity securities of such other Person.
(b) “Control” (including the terms “Controlled by” and “under common Control with”) means, as used with respect to any Person, possession, directly or indirectly or as a trustee or executor, of power to direct or cause the direction of management or policies of such Person (whether through ownership of voting securities, as trustee or executor, by agreement or otherwise).
(c) “Person” means an individual, corporation, partnership, limited liability company, joint venture, trust, unincorporated organization or other entity.
(d) Other terms used but not defined herein have the respective meanings given to such terms in the Purchase Agreement.
ARTICLE 2 MISCELLANEOUS
2.1 Validity. Sellers acknowledge that the Non-Disclosure, Non-Competition and Non-Solicitation covenants set forth in Article 1 are necessary to protect the Buyer from competing efforts and to insure that the Buyer receives the benefits for which it has paid by closing under the Purchase Agreement. If either the Non-Disclosure, Non-Competition or Non-Solicitation provisions contained in this Agreement are held by a court of competent jurisdiction to be unenforceable under applicable law with respect to duration or scope of the agreements, then the Non-Disclosure Agreement, Non-Competition Agreement or Non-Solicitation Agreement, as applicable, will be deemed unenforceable in such part or parts of the Territory for such lesser period of time and for such limited scope as is permissible under applicable law.
2.2 Waiver. The Buyer’s failure to enforce any provision of this Agreement will not in any way be construed as a waiver of any such provision or prevent the Buyer thereafter from enforcing each and every provision of this Agreement.
2.3 Applicable Law, Jurisdiction, and Venue. This Agreement shall be governed by, and construed in accordance with, the Laws of the State of Colorado applicable to agreements made and to be performed wholly within such jurisdiction. The parties hereby irrevocably and unconditionally consent to the exclusive jurisdiction of the courts of the State of Colorado and of the United States of America, in each case located in the County of Denver, for any litigation arising out of or relating to this Agreement, and further agree that service of any process, summons, notice or document by U.S. registered mail to its respective address set forth in this Agreement shall be effective service of process for any litigation brought against it in any such court. The parties hereby irrevocably and unconditionally waive any objection to the laying of venue of any litigation arising out of this Agreement in the courts of the State of Colorado or the United States of America, in each case, located in the County of Denver, and hereby further irrevocably and unconditionally waive and agree not to plead or claim in any such court that any such litigation brought in any such court has been brought in an inconvenient forum.
2.4 Attorney Fees. If any action at law or in equity is brought to enforce or interpret the terms of this Agreement, the prevailing party shall be entitled to its reasonable attorneys’ fees, costs, expert witness fees and all other disbursements in addition to any other relief to which it or he may be entitled.
2.5 Modification. This Agreement may not be amended or modified by the parties except by a written agreement executed by both parties.
2.6 Headings or Captions. Headings or captions contained in this Agreement have been inserted herein only as a matter of convenience and in no way define, limit, extend or describe the scope of this Agreement or the intent of any provision hereof.
2.7 Construction. Unless the context of this Agreement clearly requires otherwise: (i) references to the plural include the singular and vice versa; (ii) references to one gender include all genders; (iii) “including” is not limiting; (iv) “or” has the inclusive meaning represented by the phrase “and/or”; (v) the words “hereof”, “herein”, “hereby”, “hereunder” and similar terms in this Agreement refer to this Agreement as a whole and not to any particular provision of this Agreement; (vi) section and clause references are to this Agreement unless otherwise specified; (vii) reference to any agreement (including this Agreement), document or instrument means such agreement, document or instrument as amended or modified and in effect from time to time in accordance with the terms thereof and, if applicable, the terms hereof; and (vii) general or specific references to any Law mean such Law as amended, modified, codified or reenacted, in whole or in part, and in effect from time to time, unless the effect thereof is to reduce, limit or otherwise prejudicially affect any obligation or any right, power or remedy hereunder, in which case such amendment, modification, codification or reenactment will not, to the maximum extent permitted by Law, form part of this Agreement and is to be disregarded for purposes of the construction and interpretation hereof.
2.8 Counterparts. This Agreement may be executed by the parties on any number of separate counterparts, and all such counterparts so executed constitute one agreement binding on all the parties notwithstanding that all the parties are not signatories to the same counterpart.
2.9 Entire Agreement. This Agreement and the Purchase Agreement and the documents referred to therein constitute the entire agreement among the parties pertaining to the subject matter hereof and supersede all prior agreements, letters of intent, understandings, negotiations and discussions of the parties, whether oral or written.
2.10 Failure or Delay. No failure on the part of any party to exercise, and no delay in exercising, any right, power or privilege hereunder operates as a waiver thereof; nor does any single or partial exercise of any right, power or privilege hereunder preclude any other or further exercise thereof, or the exercise of any other right, power or privilege. No notice to or demand on any party in any case entitles such party to any other or further notice or demand in similar or other circumstances.
2.11 Notice. Any notice required or permitted to be given hereunder shall be sufficient if in writing and if hand delivered, sent by overnight courier, or sent by registered or certified mail, postage prepaid, addressed as follows:
If to the Buyer: Level 3 Communications, LLC
1025 Eldorado Blvd.
Broomfield, Colorado 80021
Attention: General Counsel
With a copy to: Otten, Johnson, Robinson, Neff & Ragonetti, P.C.
1600 U.S. Bank Tower
950 Seventeenth Street
Denver, Colorado 80202
Attention: Steven E. Segal, Esq.
If to Sellers: ICG Communications, Inc.
161 Inverness Drive West
Englewood, Colorado 80112
Attention: General Counsel
[Signatures on following page]
IN WITNESS WHEREOF, Sellers and the Buyer have executed this Agreement effective as of the date first written above.
ICG COMMUNICATIONS, INC.
By:
Name:
Title:
ICG TELECOM GROUP, INC.
By:
Name:
Title:
LEVEL 3 COMMUNICATIONS, LLC
By:
Name: Robert M. Yates
Title: Senior Vice President and
Assistant General Counsel
Signature Page to
| Not mentioned |
545_nda-8 | 545_nda-8_0 | Q: Receiving Party shall notify Disclosing Party in case Receiving Party is required by law, regulation or judicial process to disclose any Confidential Information.
Text: Exhibit 10.22
NON-DISCLOSURE, NON-COMPETITION, AND NON-SOLICITATION AGREEMENT
This Non-Disclosure, Non-Competition, and Non-Solicitation Agreement (“Agreement”) is entered into effective as of April 1, 2004 (the “Effective Date”), by and between Level 3 Communications, LLC, a Delaware limited liability company (“Level 3” or the “Buyer”), on the one hand, and ICG Communications, Inc. (the “Parent”), a Delaware corporation, and ICG Telecom Group, Inc. (the “Company”), a Delaware corporation, and for and on behalf of any of their direct or indirect parents, subsidiaries, successors, or Affiliates (collectively referred to as “ICG” or the “Sellers”), on the other hand.
RECITALS
A. The Sellers are engaged in conducting a dial-up ISP business whereby the Sellers provide Internet access and other Internet-related services to Internet service providers and their customers.
B. The Buyer and Sellers are parties to an Asset Purchase Agreement (the “Purchase Agreement”) dated as of April 1, 2004, pursuant to which Level 3 is purchasing from Sellers certain of Sellers’ assets (the “Acquired Assets”) used or held for use by Sellers in conducting the Sellers’ dial-up ISP business whereby the Company provides dial-up Internet access to Internet service providers and their customers, excluding the Company’s direct Internet access and primary rate interface businesses (the “Business”), as more fully described therein. Contemporaneous with this Agreement, Buyer and Sellers are closing and consummating the principal transactions contemplated by the Purchase Agreement.
C. Sellers acknowledge that the Buyer would not enter into or close the Purchase Agreement without Sellers’ agreement to the terms and conditions of this Agreement, and the execution of this Agreement by Sellers is a condition precedent to the Buyer’s obligation to close under the Purchase Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the Buyer’s execution and delivery of the Purchase Agreement, the closing thereunder and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
ARTICLE 1 NON-DISCLOSURE, NON-COMPETITION AND NON-SOLICITATION
1.1 Non-Disclosure. Sellers shall not disclose or appropriate for their own use, or for the use of any third party, at any time, any trade secrets or confidential or proprietary information included in or related to the Acquired Assets or the Business as previously operated by Sellers, whether or not developed by Sellers including, without limitation, information pertaining to the customers, vendors, prices, profits, contract terms or operating procedures of Sellers relating to the Business or the Acquired Assets; provided, however, that Sellers may use any such trade secrets and confidential or proprietary information (a) if and to the extent used in their businesses other than the Business and (b) in connection with providing services pursuant to the Transition Services Agreement.
1.2 Non-Competition. For a period of three (3) years from and after the Effective Date (the “Restrictive Period”), Sellers shall not engage, directly or indirectly, through any other entity or with any person (whether as an owner, shareholder, partner, member, director, officer, employee, agent, investor, or otherwise), in any business activity which is in competition with the Business conducted by Buyer during the Restrictive Period. The foregoing restrictions shall, however, apply only for a one-year period from and after the Effective Date with respect to any successor of any Seller who is not engaged in the same type of business as the Business as of the Effective Date and shall not apply at all with respect to any successor, other than Sellers and any of their Affiliates as of the Effective Date, that is engaged in the same type of business as the Business. Because Sellers’ Business is nationwide, Sellers agree that they will not so compete anywhere in the United States (the “Territory”). Notwithstanding the foregoing, Sellers may, during the 60-day period following the Effective Date, provide services in the Business to those customers delineated on Schedule 1.02(c) of the Purchase Agreement, subject to and in accordance with Section 5.08 of the Purchase Agreement; provided such services shall be provided solely pursuant to the customer contracts listed on such Schedule 1.02(c) and the amount of such service shall not be materially greater than that provided to such customers by Sellers during the 60-day period prior to the Effective Date.
1.3 Non-Solicitation. During the Restrictive Period, without the prior written consent of the Buyer (which Buyer may withhold in the exercise of its sole, absolute, and arbitrary discretion), Sellers (including, without limitation, any successors) shall not induce or solicit, directly or indirectly, through any other entity or with any other person, (whether as an owner, shareholder, partner, member, director, officer, employee, agent, investor, or otherwise) any employee of the Buyer or its Affiliates who is involved in the managed modem business conducted by Buyer or any of its Affiliates, including, without limitation, the Business, to terminate the employee’s employment with the Buyer or any such Affiliate.
1.4 Remedies. Any breach of any of the covenants set forth in this Article 1 would result in irreparable damage to the Buyer. Consequently, and without limiting other remedies which may exist for a breach of this Agreement, the Buyer will have the right to enforce such covenants by obtaining a temporary restraining order, preliminary injunction, and permanent injunction restraining any violation hereof, pending or following a trial on the merits, without posting any bond and in addition to all other remedies available to the Buyer at law or in equity.
1.5 Reasonableness of Covenants. Sellers acknowledge and agree that the covenants contained in this Agreement are reasonable in all respects, including without limitation their duration and geographic scope. Sellers expressly waive any defenses as to the reasonableness of such covenants in any action between the parties to enforce this Agreement.
1.6 Certain Definitions. As used in this Agreement:
(a) “Affiliate” means, with respect to any Person, a Person that directly or indirectly, through one or more intermediaries, Controls, is Controlled by, or is under common Control with, such Person; provided that a Person will not be deemed to Control another Person if the only indicia of such Control is voting control of more than 10% but less than 20% of outstanding, publicly traded equity securities of such other Person.
(b) “Control” (including the terms “Controlled by” and “under common Control with”) means, as used with respect to any Person, possession, directly or indirectly or as a trustee or executor, of power to direct or cause the direction of management or policies of such Person (whether through ownership of voting securities, as trustee or executor, by agreement or otherwise).
(c) “Person” means an individual, corporation, partnership, limited liability company, joint venture, trust, unincorporated organization or other entity.
(d) Other terms used but not defined herein have the respective meanings given to such terms in the Purchase Agreement.
ARTICLE 2 MISCELLANEOUS
2.1 Validity. Sellers acknowledge that the Non-Disclosure, Non-Competition and Non-Solicitation covenants set forth in Article 1 are necessary to protect the Buyer from competing efforts and to insure that the Buyer receives the benefits for which it has paid by closing under the Purchase Agreement. If either the Non-Disclosure, Non-Competition or Non-Solicitation provisions contained in this Agreement are held by a court of competent jurisdiction to be unenforceable under applicable law with respect to duration or scope of the agreements, then the Non-Disclosure Agreement, Non-Competition Agreement or Non-Solicitation Agreement, as applicable, will be deemed unenforceable in such part or parts of the Territory for such lesser period of time and for such limited scope as is permissible under applicable law.
2.2 Waiver. The Buyer’s failure to enforce any provision of this Agreement will not in any way be construed as a waiver of any such provision or prevent the Buyer thereafter from enforcing each and every provision of this Agreement.
2.3 Applicable Law, Jurisdiction, and Venue. This Agreement shall be governed by, and construed in accordance with, the Laws of the State of Colorado applicable to agreements made and to be performed wholly within such jurisdiction. The parties hereby irrevocably and unconditionally consent to the exclusive jurisdiction of the courts of the State of Colorado and of the United States of America, in each case located in the County of Denver, for any litigation arising out of or relating to this Agreement, and further agree that service of any process, summons, notice or document by U.S. registered mail to its respective address set forth in this Agreement shall be effective service of process for any litigation brought against it in any such court. The parties hereby irrevocably and unconditionally waive any objection to the laying of venue of any litigation arising out of this Agreement in the courts of the State of Colorado or the United States of America, in each case, located in the County of Denver, and hereby further irrevocably and unconditionally waive and agree not to plead or claim in any such court that any such litigation brought in any such court has been brought in an inconvenient forum.
2.4 Attorney Fees. If any action at law or in equity is brought to enforce or interpret the terms of this Agreement, the prevailing party shall be entitled to its reasonable attorneys’ fees, costs, expert witness fees and all other disbursements in addition to any other relief to which it or he may be entitled.
2.5 Modification. This Agreement may not be amended or modified by the parties except by a written agreement executed by both parties.
2.6 Headings or Captions. Headings or captions contained in this Agreement have been inserted herein only as a matter of convenience and in no way define, limit, extend or describe the scope of this Agreement or the intent of any provision hereof.
2.7 Construction. Unless the context of this Agreement clearly requires otherwise: (i) references to the plural include the singular and vice versa; (ii) references to one gender include all genders; (iii) “including” is not limiting; (iv) “or” has the inclusive meaning represented by the phrase “and/or”; (v) the words “hereof”, “herein”, “hereby”, “hereunder” and similar terms in this Agreement refer to this Agreement as a whole and not to any particular provision of this Agreement; (vi) section and clause references are to this Agreement unless otherwise specified; (vii) reference to any agreement (including this Agreement), document or instrument means such agreement, document or instrument as amended or modified and in effect from time to time in accordance with the terms thereof and, if applicable, the terms hereof; and (vii) general or specific references to any Law mean such Law as amended, modified, codified or reenacted, in whole or in part, and in effect from time to time, unless the effect thereof is to reduce, limit or otherwise prejudicially affect any obligation or any right, power or remedy hereunder, in which case such amendment, modification, codification or reenactment will not, to the maximum extent permitted by Law, form part of this Agreement and is to be disregarded for purposes of the construction and interpretation hereof.
2.8 Counterparts. This Agreement may be executed by the parties on any number of separate counterparts, and all such counterparts so executed constitute one agreement binding on all the parties notwithstanding that all the parties are not signatories to the same counterpart.
2.9 Entire Agreement. This Agreement and the Purchase Agreement and the documents referred to therein constitute the entire agreement among the parties pertaining to the subject matter hereof and supersede all prior agreements, letters of intent, understandings, negotiations and discussions of the parties, whether oral or written.
2.10 Failure or Delay. No failure on the part of any party to exercise, and no delay in exercising, any right, power or privilege hereunder operates as a waiver thereof; nor does any single or partial exercise of any right, power or privilege hereunder preclude any other or further exercise thereof, or the exercise of any other right, power or privilege. No notice to or demand on any party in any case entitles such party to any other or further notice or demand in similar or other circumstances.
2.11 Notice. Any notice required or permitted to be given hereunder shall be sufficient if in writing and if hand delivered, sent by overnight courier, or sent by registered or certified mail, postage prepaid, addressed as follows:
If to the Buyer: Level 3 Communications, LLC
1025 Eldorado Blvd.
Broomfield, Colorado 80021
Attention: General Counsel
With a copy to: Otten, Johnson, Robinson, Neff & Ragonetti, P.C.
1600 U.S. Bank Tower
950 Seventeenth Street
Denver, Colorado 80202
Attention: Steven E. Segal, Esq.
If to Sellers: ICG Communications, Inc.
161 Inverness Drive West
Englewood, Colorado 80112
Attention: General Counsel
[Signatures on following page]
IN WITNESS WHEREOF, Sellers and the Buyer have executed this Agreement effective as of the date first written above.
ICG COMMUNICATIONS, INC.
By:
Name:
Title:
ICG TELECOM GROUP, INC.
By:
Name:
Title:
LEVEL 3 COMMUNICATIONS, LLC
By:
Name: Robert M. Yates
Title: Senior Vice President and
Assistant General Counsel
Signature Page to
| Not mentioned |
545_nda-13 | 545_nda-13_0 | Q: Receiving Party may acquire information similar to Confidential Information from a third party.
Text: Exhibit 10.22
NON-DISCLOSURE, NON-COMPETITION, AND NON-SOLICITATION AGREEMENT
This Non-Disclosure, Non-Competition, and Non-Solicitation Agreement (“Agreement”) is entered into effective as of April 1, 2004 (the “Effective Date”), by and between Level 3 Communications, LLC, a Delaware limited liability company (“Level 3” or the “Buyer”), on the one hand, and ICG Communications, Inc. (the “Parent”), a Delaware corporation, and ICG Telecom Group, Inc. (the “Company”), a Delaware corporation, and for and on behalf of any of their direct or indirect parents, subsidiaries, successors, or Affiliates (collectively referred to as “ICG” or the “Sellers”), on the other hand.
RECITALS
A. The Sellers are engaged in conducting a dial-up ISP business whereby the Sellers provide Internet access and other Internet-related services to Internet service providers and their customers.
B. The Buyer and Sellers are parties to an Asset Purchase Agreement (the “Purchase Agreement”) dated as of April 1, 2004, pursuant to which Level 3 is purchasing from Sellers certain of Sellers’ assets (the “Acquired Assets”) used or held for use by Sellers in conducting the Sellers’ dial-up ISP business whereby the Company provides dial-up Internet access to Internet service providers and their customers, excluding the Company’s direct Internet access and primary rate interface businesses (the “Business”), as more fully described therein. Contemporaneous with this Agreement, Buyer and Sellers are closing and consummating the principal transactions contemplated by the Purchase Agreement.
C. Sellers acknowledge that the Buyer would not enter into or close the Purchase Agreement without Sellers’ agreement to the terms and conditions of this Agreement, and the execution of this Agreement by Sellers is a condition precedent to the Buyer’s obligation to close under the Purchase Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the Buyer’s execution and delivery of the Purchase Agreement, the closing thereunder and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
ARTICLE 1 NON-DISCLOSURE, NON-COMPETITION AND NON-SOLICITATION
1.1 Non-Disclosure. Sellers shall not disclose or appropriate for their own use, or for the use of any third party, at any time, any trade secrets or confidential or proprietary information included in or related to the Acquired Assets or the Business as previously operated by Sellers, whether or not developed by Sellers including, without limitation, information pertaining to the customers, vendors, prices, profits, contract terms or operating procedures of Sellers relating to the Business or the Acquired Assets; provided, however, that Sellers may use any such trade secrets and confidential or proprietary information (a) if and to the extent used in their businesses other than the Business and (b) in connection with providing services pursuant to the Transition Services Agreement.
1.2 Non-Competition. For a period of three (3) years from and after the Effective Date (the “Restrictive Period”), Sellers shall not engage, directly or indirectly, through any other entity or with any person (whether as an owner, shareholder, partner, member, director, officer, employee, agent, investor, or otherwise), in any business activity which is in competition with the Business conducted by Buyer during the Restrictive Period. The foregoing restrictions shall, however, apply only for a one-year period from and after the Effective Date with respect to any successor of any Seller who is not engaged in the same type of business as the Business as of the Effective Date and shall not apply at all with respect to any successor, other than Sellers and any of their Affiliates as of the Effective Date, that is engaged in the same type of business as the Business. Because Sellers’ Business is nationwide, Sellers agree that they will not so compete anywhere in the United States (the “Territory”). Notwithstanding the foregoing, Sellers may, during the 60-day period following the Effective Date, provide services in the Business to those customers delineated on Schedule 1.02(c) of the Purchase Agreement, subject to and in accordance with Section 5.08 of the Purchase Agreement; provided such services shall be provided solely pursuant to the customer contracts listed on such Schedule 1.02(c) and the amount of such service shall not be materially greater than that provided to such customers by Sellers during the 60-day period prior to the Effective Date.
1.3 Non-Solicitation. During the Restrictive Period, without the prior written consent of the Buyer (which Buyer may withhold in the exercise of its sole, absolute, and arbitrary discretion), Sellers (including, without limitation, any successors) shall not induce or solicit, directly or indirectly, through any other entity or with any other person, (whether as an owner, shareholder, partner, member, director, officer, employee, agent, investor, or otherwise) any employee of the Buyer or its Affiliates who is involved in the managed modem business conducted by Buyer or any of its Affiliates, including, without limitation, the Business, to terminate the employee’s employment with the Buyer or any such Affiliate.
1.4 Remedies. Any breach of any of the covenants set forth in this Article 1 would result in irreparable damage to the Buyer. Consequently, and without limiting other remedies which may exist for a breach of this Agreement, the Buyer will have the right to enforce such covenants by obtaining a temporary restraining order, preliminary injunction, and permanent injunction restraining any violation hereof, pending or following a trial on the merits, without posting any bond and in addition to all other remedies available to the Buyer at law or in equity.
1.5 Reasonableness of Covenants. Sellers acknowledge and agree that the covenants contained in this Agreement are reasonable in all respects, including without limitation their duration and geographic scope. Sellers expressly waive any defenses as to the reasonableness of such covenants in any action between the parties to enforce this Agreement.
1.6 Certain Definitions. As used in this Agreement:
(a) “Affiliate” means, with respect to any Person, a Person that directly or indirectly, through one or more intermediaries, Controls, is Controlled by, or is under common Control with, such Person; provided that a Person will not be deemed to Control another Person if the only indicia of such Control is voting control of more than 10% but less than 20% of outstanding, publicly traded equity securities of such other Person.
(b) “Control” (including the terms “Controlled by” and “under common Control with”) means, as used with respect to any Person, possession, directly or indirectly or as a trustee or executor, of power to direct or cause the direction of management or policies of such Person (whether through ownership of voting securities, as trustee or executor, by agreement or otherwise).
(c) “Person” means an individual, corporation, partnership, limited liability company, joint venture, trust, unincorporated organization or other entity.
(d) Other terms used but not defined herein have the respective meanings given to such terms in the Purchase Agreement.
ARTICLE 2 MISCELLANEOUS
2.1 Validity. Sellers acknowledge that the Non-Disclosure, Non-Competition and Non-Solicitation covenants set forth in Article 1 are necessary to protect the Buyer from competing efforts and to insure that the Buyer receives the benefits for which it has paid by closing under the Purchase Agreement. If either the Non-Disclosure, Non-Competition or Non-Solicitation provisions contained in this Agreement are held by a court of competent jurisdiction to be unenforceable under applicable law with respect to duration or scope of the agreements, then the Non-Disclosure Agreement, Non-Competition Agreement or Non-Solicitation Agreement, as applicable, will be deemed unenforceable in such part or parts of the Territory for such lesser period of time and for such limited scope as is permissible under applicable law.
2.2 Waiver. The Buyer’s failure to enforce any provision of this Agreement will not in any way be construed as a waiver of any such provision or prevent the Buyer thereafter from enforcing each and every provision of this Agreement.
2.3 Applicable Law, Jurisdiction, and Venue. This Agreement shall be governed by, and construed in accordance with, the Laws of the State of Colorado applicable to agreements made and to be performed wholly within such jurisdiction. The parties hereby irrevocably and unconditionally consent to the exclusive jurisdiction of the courts of the State of Colorado and of the United States of America, in each case located in the County of Denver, for any litigation arising out of or relating to this Agreement, and further agree that service of any process, summons, notice or document by U.S. registered mail to its respective address set forth in this Agreement shall be effective service of process for any litigation brought against it in any such court. The parties hereby irrevocably and unconditionally waive any objection to the laying of venue of any litigation arising out of this Agreement in the courts of the State of Colorado or the United States of America, in each case, located in the County of Denver, and hereby further irrevocably and unconditionally waive and agree not to plead or claim in any such court that any such litigation brought in any such court has been brought in an inconvenient forum.
2.4 Attorney Fees. If any action at law or in equity is brought to enforce or interpret the terms of this Agreement, the prevailing party shall be entitled to its reasonable attorneys’ fees, costs, expert witness fees and all other disbursements in addition to any other relief to which it or he may be entitled.
2.5 Modification. This Agreement may not be amended or modified by the parties except by a written agreement executed by both parties.
2.6 Headings or Captions. Headings or captions contained in this Agreement have been inserted herein only as a matter of convenience and in no way define, limit, extend or describe the scope of this Agreement or the intent of any provision hereof.
2.7 Construction. Unless the context of this Agreement clearly requires otherwise: (i) references to the plural include the singular and vice versa; (ii) references to one gender include all genders; (iii) “including” is not limiting; (iv) “or” has the inclusive meaning represented by the phrase “and/or”; (v) the words “hereof”, “herein”, “hereby”, “hereunder” and similar terms in this Agreement refer to this Agreement as a whole and not to any particular provision of this Agreement; (vi) section and clause references are to this Agreement unless otherwise specified; (vii) reference to any agreement (including this Agreement), document or instrument means such agreement, document or instrument as amended or modified and in effect from time to time in accordance with the terms thereof and, if applicable, the terms hereof; and (vii) general or specific references to any Law mean such Law as amended, modified, codified or reenacted, in whole or in part, and in effect from time to time, unless the effect thereof is to reduce, limit or otherwise prejudicially affect any obligation or any right, power or remedy hereunder, in which case such amendment, modification, codification or reenactment will not, to the maximum extent permitted by Law, form part of this Agreement and is to be disregarded for purposes of the construction and interpretation hereof.
2.8 Counterparts. This Agreement may be executed by the parties on any number of separate counterparts, and all such counterparts so executed constitute one agreement binding on all the parties notwithstanding that all the parties are not signatories to the same counterpart.
2.9 Entire Agreement. This Agreement and the Purchase Agreement and the documents referred to therein constitute the entire agreement among the parties pertaining to the subject matter hereof and supersede all prior agreements, letters of intent, understandings, negotiations and discussions of the parties, whether oral or written.
2.10 Failure or Delay. No failure on the part of any party to exercise, and no delay in exercising, any right, power or privilege hereunder operates as a waiver thereof; nor does any single or partial exercise of any right, power or privilege hereunder preclude any other or further exercise thereof, or the exercise of any other right, power or privilege. No notice to or demand on any party in any case entitles such party to any other or further notice or demand in similar or other circumstances.
2.11 Notice. Any notice required or permitted to be given hereunder shall be sufficient if in writing and if hand delivered, sent by overnight courier, or sent by registered or certified mail, postage prepaid, addressed as follows:
If to the Buyer: Level 3 Communications, LLC
1025 Eldorado Blvd.
Broomfield, Colorado 80021
Attention: General Counsel
With a copy to: Otten, Johnson, Robinson, Neff & Ragonetti, P.C.
1600 U.S. Bank Tower
950 Seventeenth Street
Denver, Colorado 80202
Attention: Steven E. Segal, Esq.
If to Sellers: ICG Communications, Inc.
161 Inverness Drive West
Englewood, Colorado 80112
Attention: General Counsel
[Signatures on following page]
IN WITNESS WHEREOF, Sellers and the Buyer have executed this Agreement effective as of the date first written above.
ICG COMMUNICATIONS, INC.
By:
Name:
Title:
ICG TELECOM GROUP, INC.
By:
Name:
Title:
LEVEL 3 COMMUNICATIONS, LLC
By:
Name: Robert M. Yates
Title: Senior Vice President and
Assistant General Counsel
Signature Page to
| Not mentioned |
545_nda-5 | 545_nda-5_0 | Q: Receiving Party may share some Confidential Information with some of Receiving Party's employees.
Text: Exhibit 10.22
NON-DISCLOSURE, NON-COMPETITION, AND NON-SOLICITATION AGREEMENT
This Non-Disclosure, Non-Competition, and Non-Solicitation Agreement (“Agreement”) is entered into effective as of April 1, 2004 (the “Effective Date”), by and between Level 3 Communications, LLC, a Delaware limited liability company (“Level 3” or the “Buyer”), on the one hand, and ICG Communications, Inc. (the “Parent”), a Delaware corporation, and ICG Telecom Group, Inc. (the “Company”), a Delaware corporation, and for and on behalf of any of their direct or indirect parents, subsidiaries, successors, or Affiliates (collectively referred to as “ICG” or the “Sellers”), on the other hand.
RECITALS
A. The Sellers are engaged in conducting a dial-up ISP business whereby the Sellers provide Internet access and other Internet-related services to Internet service providers and their customers.
B. The Buyer and Sellers are parties to an Asset Purchase Agreement (the “Purchase Agreement”) dated as of April 1, 2004, pursuant to which Level 3 is purchasing from Sellers certain of Sellers’ assets (the “Acquired Assets”) used or held for use by Sellers in conducting the Sellers’ dial-up ISP business whereby the Company provides dial-up Internet access to Internet service providers and their customers, excluding the Company’s direct Internet access and primary rate interface businesses (the “Business”), as more fully described therein. Contemporaneous with this Agreement, Buyer and Sellers are closing and consummating the principal transactions contemplated by the Purchase Agreement.
C. Sellers acknowledge that the Buyer would not enter into or close the Purchase Agreement without Sellers’ agreement to the terms and conditions of this Agreement, and the execution of this Agreement by Sellers is a condition precedent to the Buyer’s obligation to close under the Purchase Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the Buyer’s execution and delivery of the Purchase Agreement, the closing thereunder and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
ARTICLE 1 NON-DISCLOSURE, NON-COMPETITION AND NON-SOLICITATION
1.1 Non-Disclosure. Sellers shall not disclose or appropriate for their own use, or for the use of any third party, at any time, any trade secrets or confidential or proprietary information included in or related to the Acquired Assets or the Business as previously operated by Sellers, whether or not developed by Sellers including, without limitation, information pertaining to the customers, vendors, prices, profits, contract terms or operating procedures of Sellers relating to the Business or the Acquired Assets; provided, however, that Sellers may use any such trade secrets and confidential or proprietary information (a) if and to the extent used in their businesses other than the Business and (b) in connection with providing services pursuant to the Transition Services Agreement.
1.2 Non-Competition. For a period of three (3) years from and after the Effective Date (the “Restrictive Period”), Sellers shall not engage, directly or indirectly, through any other entity or with any person (whether as an owner, shareholder, partner, member, director, officer, employee, agent, investor, or otherwise), in any business activity which is in competition with the Business conducted by Buyer during the Restrictive Period. The foregoing restrictions shall, however, apply only for a one-year period from and after the Effective Date with respect to any successor of any Seller who is not engaged in the same type of business as the Business as of the Effective Date and shall not apply at all with respect to any successor, other than Sellers and any of their Affiliates as of the Effective Date, that is engaged in the same type of business as the Business. Because Sellers’ Business is nationwide, Sellers agree that they will not so compete anywhere in the United States (the “Territory”). Notwithstanding the foregoing, Sellers may, during the 60-day period following the Effective Date, provide services in the Business to those customers delineated on Schedule 1.02(c) of the Purchase Agreement, subject to and in accordance with Section 5.08 of the Purchase Agreement; provided such services shall be provided solely pursuant to the customer contracts listed on such Schedule 1.02(c) and the amount of such service shall not be materially greater than that provided to such customers by Sellers during the 60-day period prior to the Effective Date.
1.3 Non-Solicitation. During the Restrictive Period, without the prior written consent of the Buyer (which Buyer may withhold in the exercise of its sole, absolute, and arbitrary discretion), Sellers (including, without limitation, any successors) shall not induce or solicit, directly or indirectly, through any other entity or with any other person, (whether as an owner, shareholder, partner, member, director, officer, employee, agent, investor, or otherwise) any employee of the Buyer or its Affiliates who is involved in the managed modem business conducted by Buyer or any of its Affiliates, including, without limitation, the Business, to terminate the employee’s employment with the Buyer or any such Affiliate.
1.4 Remedies. Any breach of any of the covenants set forth in this Article 1 would result in irreparable damage to the Buyer. Consequently, and without limiting other remedies which may exist for a breach of this Agreement, the Buyer will have the right to enforce such covenants by obtaining a temporary restraining order, preliminary injunction, and permanent injunction restraining any violation hereof, pending or following a trial on the merits, without posting any bond and in addition to all other remedies available to the Buyer at law or in equity.
1.5 Reasonableness of Covenants. Sellers acknowledge and agree that the covenants contained in this Agreement are reasonable in all respects, including without limitation their duration and geographic scope. Sellers expressly waive any defenses as to the reasonableness of such covenants in any action between the parties to enforce this Agreement.
1.6 Certain Definitions. As used in this Agreement:
(a) “Affiliate” means, with respect to any Person, a Person that directly or indirectly, through one or more intermediaries, Controls, is Controlled by, or is under common Control with, such Person; provided that a Person will not be deemed to Control another Person if the only indicia of such Control is voting control of more than 10% but less than 20% of outstanding, publicly traded equity securities of such other Person.
(b) “Control” (including the terms “Controlled by” and “under common Control with”) means, as used with respect to any Person, possession, directly or indirectly or as a trustee or executor, of power to direct or cause the direction of management or policies of such Person (whether through ownership of voting securities, as trustee or executor, by agreement or otherwise).
(c) “Person” means an individual, corporation, partnership, limited liability company, joint venture, trust, unincorporated organization or other entity.
(d) Other terms used but not defined herein have the respective meanings given to such terms in the Purchase Agreement.
ARTICLE 2 MISCELLANEOUS
2.1 Validity. Sellers acknowledge that the Non-Disclosure, Non-Competition and Non-Solicitation covenants set forth in Article 1 are necessary to protect the Buyer from competing efforts and to insure that the Buyer receives the benefits for which it has paid by closing under the Purchase Agreement. If either the Non-Disclosure, Non-Competition or Non-Solicitation provisions contained in this Agreement are held by a court of competent jurisdiction to be unenforceable under applicable law with respect to duration or scope of the agreements, then the Non-Disclosure Agreement, Non-Competition Agreement or Non-Solicitation Agreement, as applicable, will be deemed unenforceable in such part or parts of the Territory for such lesser period of time and for such limited scope as is permissible under applicable law.
2.2 Waiver. The Buyer’s failure to enforce any provision of this Agreement will not in any way be construed as a waiver of any such provision or prevent the Buyer thereafter from enforcing each and every provision of this Agreement.
2.3 Applicable Law, Jurisdiction, and Venue. This Agreement shall be governed by, and construed in accordance with, the Laws of the State of Colorado applicable to agreements made and to be performed wholly within such jurisdiction. The parties hereby irrevocably and unconditionally consent to the exclusive jurisdiction of the courts of the State of Colorado and of the United States of America, in each case located in the County of Denver, for any litigation arising out of or relating to this Agreement, and further agree that service of any process, summons, notice or document by U.S. registered mail to its respective address set forth in this Agreement shall be effective service of process for any litigation brought against it in any such court. The parties hereby irrevocably and unconditionally waive any objection to the laying of venue of any litigation arising out of this Agreement in the courts of the State of Colorado or the United States of America, in each case, located in the County of Denver, and hereby further irrevocably and unconditionally waive and agree not to plead or claim in any such court that any such litigation brought in any such court has been brought in an inconvenient forum.
2.4 Attorney Fees. If any action at law or in equity is brought to enforce or interpret the terms of this Agreement, the prevailing party shall be entitled to its reasonable attorneys’ fees, costs, expert witness fees and all other disbursements in addition to any other relief to which it or he may be entitled.
2.5 Modification. This Agreement may not be amended or modified by the parties except by a written agreement executed by both parties.
2.6 Headings or Captions. Headings or captions contained in this Agreement have been inserted herein only as a matter of convenience and in no way define, limit, extend or describe the scope of this Agreement or the intent of any provision hereof.
2.7 Construction. Unless the context of this Agreement clearly requires otherwise: (i) references to the plural include the singular and vice versa; (ii) references to one gender include all genders; (iii) “including” is not limiting; (iv) “or” has the inclusive meaning represented by the phrase “and/or”; (v) the words “hereof”, “herein”, “hereby”, “hereunder” and similar terms in this Agreement refer to this Agreement as a whole and not to any particular provision of this Agreement; (vi) section and clause references are to this Agreement unless otherwise specified; (vii) reference to any agreement (including this Agreement), document or instrument means such agreement, document or instrument as amended or modified and in effect from time to time in accordance with the terms thereof and, if applicable, the terms hereof; and (vii) general or specific references to any Law mean such Law as amended, modified, codified or reenacted, in whole or in part, and in effect from time to time, unless the effect thereof is to reduce, limit or otherwise prejudicially affect any obligation or any right, power or remedy hereunder, in which case such amendment, modification, codification or reenactment will not, to the maximum extent permitted by Law, form part of this Agreement and is to be disregarded for purposes of the construction and interpretation hereof.
2.8 Counterparts. This Agreement may be executed by the parties on any number of separate counterparts, and all such counterparts so executed constitute one agreement binding on all the parties notwithstanding that all the parties are not signatories to the same counterpart.
2.9 Entire Agreement. This Agreement and the Purchase Agreement and the documents referred to therein constitute the entire agreement among the parties pertaining to the subject matter hereof and supersede all prior agreements, letters of intent, understandings, negotiations and discussions of the parties, whether oral or written.
2.10 Failure or Delay. No failure on the part of any party to exercise, and no delay in exercising, any right, power or privilege hereunder operates as a waiver thereof; nor does any single or partial exercise of any right, power or privilege hereunder preclude any other or further exercise thereof, or the exercise of any other right, power or privilege. No notice to or demand on any party in any case entitles such party to any other or further notice or demand in similar or other circumstances.
2.11 Notice. Any notice required or permitted to be given hereunder shall be sufficient if in writing and if hand delivered, sent by overnight courier, or sent by registered or certified mail, postage prepaid, addressed as follows:
If to the Buyer: Level 3 Communications, LLC
1025 Eldorado Blvd.
Broomfield, Colorado 80021
Attention: General Counsel
With a copy to: Otten, Johnson, Robinson, Neff & Ragonetti, P.C.
1600 U.S. Bank Tower
950 Seventeenth Street
Denver, Colorado 80202
Attention: Steven E. Segal, Esq.
If to Sellers: ICG Communications, Inc.
161 Inverness Drive West
Englewood, Colorado 80112
Attention: General Counsel
[Signatures on following page]
IN WITNESS WHEREOF, Sellers and the Buyer have executed this Agreement effective as of the date first written above.
ICG COMMUNICATIONS, INC.
By:
Name:
Title:
ICG TELECOM GROUP, INC.
By:
Name:
Title:
LEVEL 3 COMMUNICATIONS, LLC
By:
Name: Robert M. Yates
Title: Senior Vice President and
Assistant General Counsel
Signature Page to
| Not mentioned |
545_nda-4 | 545_nda-4_0 | Q: Receiving Party shall not use any Confidential Information for any purpose other than the purposes stated in Agreement.
Text: Exhibit 10.22
NON-DISCLOSURE, NON-COMPETITION, AND NON-SOLICITATION AGREEMENT
This Non-Disclosure, Non-Competition, and Non-Solicitation Agreement (“Agreement”) is entered into effective as of April 1, 2004 (the “Effective Date”), by and between Level 3 Communications, LLC, a Delaware limited liability company (“Level 3” or the “Buyer”), on the one hand, and ICG Communications, Inc. (the “Parent”), a Delaware corporation, and ICG Telecom Group, Inc. (the “Company”), a Delaware corporation, and for and on behalf of any of their direct or indirect parents, subsidiaries, successors, or Affiliates (collectively referred to as “ICG” or the “Sellers”), on the other hand.
RECITALS
A. The Sellers are engaged in conducting a dial-up ISP business whereby the Sellers provide Internet access and other Internet-related services to Internet service providers and their customers.
B. The Buyer and Sellers are parties to an Asset Purchase Agreement (the “Purchase Agreement”) dated as of April 1, 2004, pursuant to which Level 3 is purchasing from Sellers certain of Sellers’ assets (the “Acquired Assets”) used or held for use by Sellers in conducting the Sellers’ dial-up ISP business whereby the Company provides dial-up Internet access to Internet service providers and their customers, excluding the Company’s direct Internet access and primary rate interface businesses (the “Business”), as more fully described therein. Contemporaneous with this Agreement, Buyer and Sellers are closing and consummating the principal transactions contemplated by the Purchase Agreement.
C. Sellers acknowledge that the Buyer would not enter into or close the Purchase Agreement without Sellers’ agreement to the terms and conditions of this Agreement, and the execution of this Agreement by Sellers is a condition precedent to the Buyer’s obligation to close under the Purchase Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the Buyer’s execution and delivery of the Purchase Agreement, the closing thereunder and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
ARTICLE 1 NON-DISCLOSURE, NON-COMPETITION AND NON-SOLICITATION
1.1 Non-Disclosure. Sellers shall not disclose or appropriate for their own use, or for the use of any third party, at any time, any trade secrets or confidential or proprietary information included in or related to the Acquired Assets or the Business as previously operated by Sellers, whether or not developed by Sellers including, without limitation, information pertaining to the customers, vendors, prices, profits, contract terms or operating procedures of Sellers relating to the Business or the Acquired Assets; provided, however, that Sellers may use any such trade secrets and confidential or proprietary information (a) if and to the extent used in their businesses other than the Business and (b) in connection with providing services pursuant to the Transition Services Agreement.
1.2 Non-Competition. For a period of three (3) years from and after the Effective Date (the “Restrictive Period”), Sellers shall not engage, directly or indirectly, through any other entity or with any person (whether as an owner, shareholder, partner, member, director, officer, employee, agent, investor, or otherwise), in any business activity which is in competition with the Business conducted by Buyer during the Restrictive Period. The foregoing restrictions shall, however, apply only for a one-year period from and after the Effective Date with respect to any successor of any Seller who is not engaged in the same type of business as the Business as of the Effective Date and shall not apply at all with respect to any successor, other than Sellers and any of their Affiliates as of the Effective Date, that is engaged in the same type of business as the Business. Because Sellers’ Business is nationwide, Sellers agree that they will not so compete anywhere in the United States (the “Territory”). Notwithstanding the foregoing, Sellers may, during the 60-day period following the Effective Date, provide services in the Business to those customers delineated on Schedule 1.02(c) of the Purchase Agreement, subject to and in accordance with Section 5.08 of the Purchase Agreement; provided such services shall be provided solely pursuant to the customer contracts listed on such Schedule 1.02(c) and the amount of such service shall not be materially greater than that provided to such customers by Sellers during the 60-day period prior to the Effective Date.
1.3 Non-Solicitation. During the Restrictive Period, without the prior written consent of the Buyer (which Buyer may withhold in the exercise of its sole, absolute, and arbitrary discretion), Sellers (including, without limitation, any successors) shall not induce or solicit, directly or indirectly, through any other entity or with any other person, (whether as an owner, shareholder, partner, member, director, officer, employee, agent, investor, or otherwise) any employee of the Buyer or its Affiliates who is involved in the managed modem business conducted by Buyer or any of its Affiliates, including, without limitation, the Business, to terminate the employee’s employment with the Buyer or any such Affiliate.
1.4 Remedies. Any breach of any of the covenants set forth in this Article 1 would result in irreparable damage to the Buyer. Consequently, and without limiting other remedies which may exist for a breach of this Agreement, the Buyer will have the right to enforce such covenants by obtaining a temporary restraining order, preliminary injunction, and permanent injunction restraining any violation hereof, pending or following a trial on the merits, without posting any bond and in addition to all other remedies available to the Buyer at law or in equity.
1.5 Reasonableness of Covenants. Sellers acknowledge and agree that the covenants contained in this Agreement are reasonable in all respects, including without limitation their duration and geographic scope. Sellers expressly waive any defenses as to the reasonableness of such covenants in any action between the parties to enforce this Agreement.
1.6 Certain Definitions. As used in this Agreement:
(a) “Affiliate” means, with respect to any Person, a Person that directly or indirectly, through one or more intermediaries, Controls, is Controlled by, or is under common Control with, such Person; provided that a Person will not be deemed to Control another Person if the only indicia of such Control is voting control of more than 10% but less than 20% of outstanding, publicly traded equity securities of such other Person.
(b) “Control” (including the terms “Controlled by” and “under common Control with”) means, as used with respect to any Person, possession, directly or indirectly or as a trustee or executor, of power to direct or cause the direction of management or policies of such Person (whether through ownership of voting securities, as trustee or executor, by agreement or otherwise).
(c) “Person” means an individual, corporation, partnership, limited liability company, joint venture, trust, unincorporated organization or other entity.
(d) Other terms used but not defined herein have the respective meanings given to such terms in the Purchase Agreement.
ARTICLE 2 MISCELLANEOUS
2.1 Validity. Sellers acknowledge that the Non-Disclosure, Non-Competition and Non-Solicitation covenants set forth in Article 1 are necessary to protect the Buyer from competing efforts and to insure that the Buyer receives the benefits for which it has paid by closing under the Purchase Agreement. If either the Non-Disclosure, Non-Competition or Non-Solicitation provisions contained in this Agreement are held by a court of competent jurisdiction to be unenforceable under applicable law with respect to duration or scope of the agreements, then the Non-Disclosure Agreement, Non-Competition Agreement or Non-Solicitation Agreement, as applicable, will be deemed unenforceable in such part or parts of the Territory for such lesser period of time and for such limited scope as is permissible under applicable law.
2.2 Waiver. The Buyer’s failure to enforce any provision of this Agreement will not in any way be construed as a waiver of any such provision or prevent the Buyer thereafter from enforcing each and every provision of this Agreement.
2.3 Applicable Law, Jurisdiction, and Venue. This Agreement shall be governed by, and construed in accordance with, the Laws of the State of Colorado applicable to agreements made and to be performed wholly within such jurisdiction. The parties hereby irrevocably and unconditionally consent to the exclusive jurisdiction of the courts of the State of Colorado and of the United States of America, in each case located in the County of Denver, for any litigation arising out of or relating to this Agreement, and further agree that service of any process, summons, notice or document by U.S. registered mail to its respective address set forth in this Agreement shall be effective service of process for any litigation brought against it in any such court. The parties hereby irrevocably and unconditionally waive any objection to the laying of venue of any litigation arising out of this Agreement in the courts of the State of Colorado or the United States of America, in each case, located in the County of Denver, and hereby further irrevocably and unconditionally waive and agree not to plead or claim in any such court that any such litigation brought in any such court has been brought in an inconvenient forum.
2.4 Attorney Fees. If any action at law or in equity is brought to enforce or interpret the terms of this Agreement, the prevailing party shall be entitled to its reasonable attorneys’ fees, costs, expert witness fees and all other disbursements in addition to any other relief to which it or he may be entitled.
2.5 Modification. This Agreement may not be amended or modified by the parties except by a written agreement executed by both parties.
2.6 Headings or Captions. Headings or captions contained in this Agreement have been inserted herein only as a matter of convenience and in no way define, limit, extend or describe the scope of this Agreement or the intent of any provision hereof.
2.7 Construction. Unless the context of this Agreement clearly requires otherwise: (i) references to the plural include the singular and vice versa; (ii) references to one gender include all genders; (iii) “including” is not limiting; (iv) “or” has the inclusive meaning represented by the phrase “and/or”; (v) the words “hereof”, “herein”, “hereby”, “hereunder” and similar terms in this Agreement refer to this Agreement as a whole and not to any particular provision of this Agreement; (vi) section and clause references are to this Agreement unless otherwise specified; (vii) reference to any agreement (including this Agreement), document or instrument means such agreement, document or instrument as amended or modified and in effect from time to time in accordance with the terms thereof and, if applicable, the terms hereof; and (vii) general or specific references to any Law mean such Law as amended, modified, codified or reenacted, in whole or in part, and in effect from time to time, unless the effect thereof is to reduce, limit or otherwise prejudicially affect any obligation or any right, power or remedy hereunder, in which case such amendment, modification, codification or reenactment will not, to the maximum extent permitted by Law, form part of this Agreement and is to be disregarded for purposes of the construction and interpretation hereof.
2.8 Counterparts. This Agreement may be executed by the parties on any number of separate counterparts, and all such counterparts so executed constitute one agreement binding on all the parties notwithstanding that all the parties are not signatories to the same counterpart.
2.9 Entire Agreement. This Agreement and the Purchase Agreement and the documents referred to therein constitute the entire agreement among the parties pertaining to the subject matter hereof and supersede all prior agreements, letters of intent, understandings, negotiations and discussions of the parties, whether oral or written.
2.10 Failure or Delay. No failure on the part of any party to exercise, and no delay in exercising, any right, power or privilege hereunder operates as a waiver thereof; nor does any single or partial exercise of any right, power or privilege hereunder preclude any other or further exercise thereof, or the exercise of any other right, power or privilege. No notice to or demand on any party in any case entitles such party to any other or further notice or demand in similar or other circumstances.
2.11 Notice. Any notice required or permitted to be given hereunder shall be sufficient if in writing and if hand delivered, sent by overnight courier, or sent by registered or certified mail, postage prepaid, addressed as follows:
If to the Buyer: Level 3 Communications, LLC
1025 Eldorado Blvd.
Broomfield, Colorado 80021
Attention: General Counsel
With a copy to: Otten, Johnson, Robinson, Neff & Ragonetti, P.C.
1600 U.S. Bank Tower
950 Seventeenth Street
Denver, Colorado 80202
Attention: Steven E. Segal, Esq.
If to Sellers: ICG Communications, Inc.
161 Inverness Drive West
Englewood, Colorado 80112
Attention: General Counsel
[Signatures on following page]
IN WITNESS WHEREOF, Sellers and the Buyer have executed this Agreement effective as of the date first written above.
ICG COMMUNICATIONS, INC.
By:
Name:
Title:
ICG TELECOM GROUP, INC.
By:
Name:
Title:
LEVEL 3 COMMUNICATIONS, LLC
By:
Name: Robert M. Yates
Title: Senior Vice President and
Assistant General Counsel
Signature Page to
| Entailment |
548_nda-11 | 548_nda-11_0 | Q: Receiving Party shall not reverse engineer any objects which embody Disclosing Party's Confidential Information.
Text: Exhibit 10.8
NON-DISCLOSURE AND NON-SOLICITATION AGREEMENT
THIS NON-DISCLOSURE AND NON-SOLICITATION AGREEMENT (“Agreement”) is made and entered into, effective as of the date first written below, by and among First Financial Corporation (“First Financial”), First Financial Bank, N.A. (“Bank”), a wholly-owned subsidiary of First Financial, HopFed Bancorp, Inc. (“HopFed”), Heritage Bank USA, Inc., (“Heritage”), a wholly-owned subsidiary of HopFed, and Billy C. Duvall (“Employee”). “Banking Organization” shall mean First Financial, the Bank, HopFed, and/or Heritage. “Financial Institution” shall mean the Bank and/or Heritage. First Financial, the Bank, HopFed, Heritage and Employee may be collectively referenced as the “parties” or individually as a “party.”
WHEREAS, pursuant to that certain Agreement and Plan of Merger, dated January 7, 2019, by and between HopFed and First Financial (the “Merger Agreement”), HopFed shall be merged with and into First Financial (the “Merger”) effective as of the date and time provided in the Merger Agreement (the “Effective Time”); and
WHEREAS, Heritage will be merged into the Bank at the Effective Time or shortly thereafter; and
WHEREAS, Employee is currently an employee of Heritage and the Bank intends to offer employment to the Employee as an at-will employee to provide services for and on behalf of the Bank immediately upon the Effective Time;
WHEREAS, as a result of employment with Heritage up to the Effective Time and with the Bank thereafter, Employee had, has and will have access to Confidential Information (as defined below) and may have acquired or will acquire knowledge regarding Confidential Information, including, but not limited to, information regarding Customers or Potential Customers (as defined below), and a Banking Organization could be harmed if such Confidential Information were to be used, divulged or become known to any competitor of a Banking Organization or to any other Person (as defined below) or to any entity outside of a Banking Organization;
WHEREAS, Employee has developed or may develop contacts and business relationships with Customers or Potential Customers which could be used to the detriment of a Banking Organization and/or to solicit employees away from a Banking Organization; and
WHEREAS, each Banking Organization desires reasonable protection of its respective confidential business and customer information which such Banking Organization has developed and will develop over the years at substantial expense.
NOW, THEREFORE, the parties incorporate the above recitals, and in consideration of the mutual promises, covenants and agreements made herein, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Consideration/At-Will Employment.
a. This Agreement neither constitutes an employment contract or agreement to Employee for a stated period of time, nor does it alter Employee’s existing employment status.
b. In consideration of Employee’s promises, covenants and agreements set forth in this Agreement, (i) as of the date of this Agreement and up to the Effective Time Heritage shall maintain Employee’s employment with the compensation and benefits commensurate therewith, and (ii) effective as of the Effective Time, the Bank shall offer or maintain Employee’s employment as an at-will employee with the compensation and benefits commensurate therewith. For avoidance of doubt, following the Effective Time, Bank or Employee can terminate the employment at any time, with or without cause, and with or without prior notice. Employee understands and agrees, upon the Effective Time, that he/she will be an at-will employee of Bank and that this Agreement does not change or affect Employee’s employee-at-will status.
2. Duties. Employee shall devote his/her full working time and attention to the performance of those services for the Banking Organization which are assigned to him/her from time to time and to perform such services in a faithful, honest and diligent manner and in the best interest of such Banking Organization.
3. Definitions of Key Terms.
a. “Banking and Financial Services” shall mean those banking and related financial services of a Banking Organization or subsidiary thereof, including but not limited to, checking and savings accounts, health savings accounts, money market accounts, loans, credit cards, cash management services, lines of credit, investment services (such as IRAs, college savings plans, estate planning, investment planning, business planning), and trust services, provided during any period in which Employee served or will serve in any capacity for a Financial Institution and all banking and related financial services substantially similar to such banking and related financial services.
b. “Confidential Information” shall mean any and all materials, records, data, documents, lists, writings, and information (whether in writing, printed, electronically stored, computerized, on disk or otherwise, including, but not limited to, all copies, summaries, analyses, drafts, and extracts) relating or referring in any manner to trade secrets (as currently defined under applicable law, including, but not limited to, the Indiana Uniform Trade Secrets Act and any amendments or successor statutes) of a Banking Organization, as well as other non-public financial or proprietary information of a Banking Organization including, but not limited to, business reports, business plans, projections, income statements, profit and loss statements, business strategies and/or strategic plans, internal audits, sales information, sales techniques, business costs, product pricing, budgets, research and development, intellectual property, software and/or computer programs, marketing strategies or ideas, marketing plans or materials, business development plans or strategies, records or information relating to customers or account holders, customer lists, inventions, and processes, systems, methods, documentation or devices which are unique or proprietary to the business of or services or products of a Banking Organization. Confidential Information shall not include information that: (i) is or becomes readily or publicly available, not as a result of a violation of this Agreement or other obligation of confidence, directly or indirectly, of the disclosing party; (ii) is developed by other parties, including, but not limited to, subsequent employers of the Employee, independent of the knowledge or resources of the Employee based upon his or her prior access to a Banking Organization’s Confidential Information; (iii) is independently developed after the Employee’s termination of employment without reference to or use of the Confidential Information or materials based thereon; (iv) is based on the Employee’s personal experience, knowledge, enterprise and expertise in the delivery of Banking and Financial Services and which is general knowledge concerning the industry, not specific to a Banking Organization; or (v) is disclosed pursuant to the requirements of a court, administrative agency or other governmental agency.
c. “Customers” or “Customer” shall mean any Person to whom a Banking Organization rendered or provided Banking and Financial Services at any time during the one-year period prior to Employee’s termination of employment with a Financial Institution: (i) with whom Employee had any material contact (either directly or indirectly); (ii) which Employee managed, had responsibility for or regularly serviced while employed by the Financial Institution, provided, however, this shall not be construed to include supervising those who have such a relationship to the Customer; or, (iii) about which Employee obtained Confidential Information.
d. “Employees,” “Agents,” and “Independent Contractors” shall mean any and all persons employed or contracted by a Banking Organization or who were employed or contracted by a Banking Organization, as an employee, agent or independent contractor, within the six (6) month period prior to Employee’s termination of employment with either Financial Institution.
e. “Person” shall mean any individual, partnership, corporation, organization, bank, credit union, firm, association, limited liability company, trust, joint venture, company or other entity, body, agency or department thereof.
f. “Potential Customer” shall mean any Person that Employee directly solicited, targeted or specifically identified as a prospective or potential customer, or about which Employee obtained information on behalf of a Banking Organization for purposes of directly soliciting, targeting or specifically identifying as a prospective or potential customer, during the one (1) year period prior to Employee’s termination of employment with either Financial Institution.
g. “Solicit”, “Solicited” or “Solicitation” means any direct or indirect communication of any kind whatsoever, regardless of by whom initiated, inviting, advising, inducing, encouraging, enticing, or requesting either expressly or implicitly, any Person, in any manner, to take or refrain from taking action, provided, however, this definition does not include communications initiated by Customers or Potential Customers of their own initiative, without prompting or encouragement by Employee or anyone acting on Employee’s behalf.
4. Non-Disclosure of Confidential Information. During the course of Employee’s employment with a Financial Institution, Employee agrees that Employee has or will continue to become knowledgeable about, or come to be in possession of, Confidential Information. If such Confidential Information were to be divulged or become known to any competitor of a Banking Organization, or to any other Person outside of a Banking Organization, or if Employee were to consent to be employed by any competitor of a Banking Organization, or to engage in competition with a Banking Organization, such Banking Organization will be harmed. In addition, Employee has or may develop relationships with Customers or Potential Customers so that the Confidential Information could be used to Solicit the business of such Customer or Potential Customer away from a Banking Organization.
Employee shall not, directly or indirectly, use any Confidential Information for any purpose other than the benefit of a Banking Organization, and shall not directly or indirectly, disclose, communicate, deliver, exhibit or provide any Confidential Information to any Person, except other Employees or Agents of a Banking Organization who have a need to know such Confidential Information for a proper corporate or business purpose, as required in the normal course of Employee’s service as an employee. Nothing in this Section 4, or any other provision of this Agreement, shall be construed to prohibit Employee from reporting conduct to, providing truthful information to, or participating in any investigation or proceeding brought or conducted by any federal or state government agency or self-regulatory organization.
Employee specifically acknowledges that the Confidential Information, whether reduced to writing or maintained electronically or in the mind or memory of Employee and, whether compiled by a Banking Organization and/or the Employee, derives independent economic value from not being readily known to or ascertainable by proper means by others who can obtain economic value from its disclosure or use, that reasonable efforts have been put forth by each Banking Organization to maintain the secrecy of such information, that such information is the sole property of such Banking Organization and that any retention and/or use of such information during or after Employee’s employment with either Financial Institution (except in the course of performing the Employee’s duties of employment with a Financial Institution and except as otherwise set forth above) constitutes a misappropriation of a Banking Organization’s Confidential Information.
Employee agrees that all Confidential Information and all records, documents and materials relating to all Confidential Information (including all copies thereof) shall be and remain the sole and exclusive property of a Banking Organization, and upon Employee’s termination of employment, all such Confidential Information, whether in paper or electronic form, shall be returned to a Financial Institution in good condition, without Employee retaining a copy thereof, including, but not limited to, retaining an electronic copy on any electronic device regardless of whether such device is owned by Employee. At a Financial Institution’s request, Employee shall provide written verification, under the penalties for perjury, of his/her compliance with this covenant.
5. Non-Solicitation of Customers and Potential Customers. Employee acknowledges and agrees that by virtue of Employee’s position with a Banking Organization, Employee has or will have advantageous familiarity and personal contacts with Customers and Potential Customers and will have advantageous familiarity with the business operations and affairs of a Banking Organization. Employee further acknowledges and agrees that Employee has been or will be placed in a position that, were Employee to leave a Financial Institution to compete with the business of a Banking Organization, such entity from which the Employee departed would, upon violation of this Agreement, suffer irreparable harm and financial loss, as well as lost goodwill and Confidential Information. Therefore, in consideration of the covenants of all Financial Institutions contained herein, Employee agrees that during Employee’s employment with a Financial Institution, and for a period of one (1) year immediately following the termination of Employee’s employment with a Financial Institution (“Restriction Period”), for whatever reason and regardless of how Employee’s employment was terminated, Employee shall not, directly or indirectly (including, but not limited to, through other individuals, any partnership, corporation or business entity in which Employee has an ownership interest or serves as an officer, employee, independent contractor, representative, agent or consultant), either for Employee’s own benefit or the benefit of any other Person:
a. Solicit, divert, or take away (or attempt to Solicit, divert or take away) any Banking and Financial Services to or from any Customer or Potential Customer; or
b. advise, persuade or induce (or attempt to advise, persuade or induce) any Customer or Potential Customer to terminate, reduce, limit, or change the Customer’s services or business relationship, or the Potential Customer’s contemplated services or business relationship, with a Financial Institution; or
c. directly provide Banking and Financial Services to, or directly accept Banking and Financial Services from, any Customer or Potential Customer.
This Agreement is not intended to prevent Employee from accepting employment with an organization that competes with the Banking Organizations by offering Banking and Financial Services to Customers or Potential Customers. The Parties acknowledge that Employee may be associated with such an Organization and that such association may place Employee in a senior or supervisory role to those in the organization that have contact with Customers or Potential Customers. Employee shall not be in violation of this Agreement merely by engaging in such a role, which may include:
a. supervising those who provide Banking and Financial Services to Customers or Potential Customers;
b. engaging in credit review, underwriting, loan approval, or financial analysis of a Customer or Potential Customer’s business as a part of a supervisory or management role, so long as such activity does not require the disclosure of Confidential Information, direct contact with the Customer or Potential Customer, or the disclosure of Employee’s role to the Customer or Potential Customer;
c. performing or supervising those that perform data processing, accounting, rate review, document review or similar “back room” services related to a Customer or Potential Customer so long as the services do not require the disclosure of Confidential Information or contact with the Customer or Potential Customer.
6. Non-Solicitation of Employees and Others. In consideration of the covenants of all Financial Institutions contained herein, Employee agrees that during Employee’s employment with a Financial Institution, and for a period of two (2) years immediately following the termination of Employee’s employment with a Financial Institution, for whatever reason and regardless of how Employee’s employment was terminated, Employee shall not, directly or indirectly (including, but not limited to, through other individuals, any partnership, corporation or business entity in which Employee has an ownership interest or serves as an officer, employee, independent contractor, representative, agent or consultant), either for Employee’s own benefit or the benefit of any other Person:
c. Solicit, entice or persuade (or attempt to Solicit, entice or persuade) any Employee to terminate his or her employment with a Banking Organization, or offer or provide employment (whether such employment is with Employee or any other Person) either on a full-time or part-time, consulting or Independent Contractor basis; or
d. Solicit, entice or persuade (or attempt to Solicit, entice or persuade) any Independent Contractors or Agents to terminate their contract or relationship with a Banking Organization or discontinue providing services to a Banking Organization and/or Customers; or
e. Solicit, entice or persuade (or attempt to Solicit, entice or persuade) any suppliers, vendors or others who were supplying services or goods to a Banking Organization during the one year period prior to Employee’s termination, to terminate, reduce, limit or change their business or relationship with a Banking Organization.
7. Tolling of Covenants. Employee acknowledges that a Banking Organization is entitled to the full post-termination restrictions on the activities set forth in Sections 5 and 6, as applicable. Therefore, in the event any of the provisions of these Sections are breached by Employee, the commencement of the applicable post-termination restriction will not begin until Employee is in full compliance with Section 5 and/or 6.
8. Severability/Blue Pencil. Each of the provisions of this Agreement, including, but not limited to, the restrictive covenants in Sections 5 and 6, are distinct and severable, notwithstanding that the covenants may be set forth in one section for convenience. If any provision of this Agreement shall be determined to be invalid, illegal or unenforceable in whole or in part, for any reason, neither the validity of the remaining part of such provision nor the validity of any other provision of this Agreement shall in any way be affected. Should any particular restrictive covenant, provision or clause of this Agreement be held unreasonable or unenforceable for any reason, including without limitation, the time period, geographic area and/or scope of activity covered by such covenant, provision or clause, the parties acknowledge and agree that such covenant, provision or clause shall be given effect and enforce to whatever extent would be
reasonable and enforceable under applicable law. The parties expressly authorize a court of competent jurisdiction to modify or revise such provision to limit the covenants to cover the maximum period of time, range of activities or other restrictions as would be enforceable under Indiana law.
9. Available Relief. Employee agrees that a Banking Organization, or its successor or assigns, will suffer irreparable damage and injury and will not have an adequate remedy at law in the event of any breach by Employee of any provision of Sections 4, 5 or 6, herein. Accordingly, in the event of a breach or of a threatened or attempted breach by Employee of Sections 4, 5, or 6, in addition to all other remedies to which a Banking Organization is entitled under law, in equity, or otherwise (including, but not limited to, monetary damages), a Banking Organization or its assigns and successors, shall be entitled to a temporary restraining order and/or preliminary or permanent injunction (without the necessity of showing any actual damage) or a decree of specific performance and no bond or other security shall be required in that connection.
10. Enforcement/Attorneys’ Fees. In any action that is brought to enforce or interpret this Agreement, the prevailing party or its assigns and successors, shall be entitled to recover their reasonable attorneys’ and paralegal fees and expenses incurred in connection therewith. If a Banking Organization or its assigns and successors, institute any action or proceeding to enforce the provisions of this Agreement, Employee hereby waives all claims or defenses that a Banking Organization or its assigns and successors, have an adequate remedy at law, and Employee shall not urge in any such action or proceeding the claim or defense that such a remedy at law exists.
11. Assignments; Successors and Assigns. The rights and obligations of Employee hereunder are not assignable or delegable by Employee, and any prohibited assignment or delegation will be null and void. The Banking Organization may, without the consent of the Employee, assign this Agreement to any successor or in connection with any merger, consolidation, share exchange, combination, sale of stock or assets or similar transaction. The provisions hereof shall inure to the benefit of and be binding upon the successors and assigns of a Banking Organization.
12. Governing Law. This Agreement shall be interpreted under, subject to and governed by the laws of the State of Indiana, without consideration of the choice of law principles thereof, and all questions concerning its validity, construction and administration shall be determined in accordance with Indiana law.
13. Entire Agreement/Modification/Waiver. This Agreement constitutes the entire agreement among the parties relating to the subject matter hereof and expressly supersedes any prior agreements between the parties relating to the subject matter hereof. This Agreement shall not be terminated, amended or modified without the prior written consent of the Bank’s President and Chief Executive Officer and Employee. No failure or delay by a Banking Organization in exercising any right or remedy under this Agreement shall operate as a waiver thereof, nor shall any waiver by a Banking Organization under this Agreement operate or be construed as a continuing waiver or a waiver of any subsequent breach or noncompliance hereunder. No single or partial exercise of any right or remedy by a Banking Organization shall preclude any other or further exercise thereof or the exercise of any other right or remedy. Any waiver by a Banking Organization under this Agreement shall be in writing and signed by the Bank’s President and Chief Executive Officer. A waiver shall operate only as to the specific term or condition waived and will not constitute a waiver for the future or act on anything other than that which is specifically waived.
14. “No-Defense” Provision. The covenants set forth in this Agreement are essential terms and conditions to a Banking Organization employing or continuing to employ Employee, and shall be construed as independent of any other obligations or agreements between Employee and a Banking Organization. The existence of any claim or cause of action Employee may have against a Banking Organization, including, but not limited to, the alleged material breach by a Banking Organization of any agreement with Employee, shall not constitute a defense to the enforcement by a Banking Organization of the covenants and obligations in this Agreement and shall not relieve Employee of his or her obligations under this Agreement.
15. Jurisdiction and Venue. The parties agree that all suits, actions, proceedings, litigation, disputes, or claims relating to or arising out of this Agreement shall be filed and tried in the Superior or Circuit Court, as appropriate, of Vigo County, Indiana, or the United States District Court for the Southern District of Indiana, Terre Haute Division. In this regard, the parties hereby: (a) agree that venue shall be such stated courts; (b) irrevocably consent to service of process and to the jurisdiction and venue of such courts; and (c) irrevocably waive any claim of inconvenient forum if any such suit, claim, proceeding, litigation, dispute, or claim has been filed, brought, or made in any of such courts.
16. Construction. This Agreement is the result of negotiations between the parties, and no party shall be deemed to be the drafter of this Agreement; accordingly, this Agreement shall be interpreted and construed without any presumption or inference based upon or against the party causing this Agreement to be prepared. The language of this Agreement shall in all cases be construed as a whole, according to its fair meaning and not strictly for or against any party.
17. Review and Consultation. Employee acknowledges and agrees that he/she has read this Agreement in its entirety prior to executing it, understands the provisions and effects of this Agreement, and has consulted with or had the opportunity to consult with an attorney or other advisers as he/she deemed appropriate in connection with the execution of this Agreement.
18. Section Headings. Section headings are inserted into this Agreement for convenience only and shall not affect any construction or interpretation of this Agreement.
19. Reasonableness. Employee agrees and acknowledges that the covenants, restrictions and obligations set forth in this Agreement, including Sections 5 and 6, are reasonable and necessary to protect a Banking Organization. Employee agrees that the covenants, restrictions and obligations will not affect Employee’s ability to make a living.
20. Counterparts. This Agreement may be executed in any number of identical counterparts, each of which shall be deemed a duplicate original but all of which shall constitute one and the same agreement. The parties agree that signatures transmitted by facsimile or other electronic means are acceptable the same as original signatures for the execution of the Agreement.
21. Miscellaneous. Any change in Employee’s duties, responsibilities, title, position, compensation, or status, with a Financial Institution will not affect the validity or enforceability of this Agreement.
22. Representations. Employee represents and warrants that he/she is not a party to an agreement with his or her prior employer(s) (other than Heritage or HopFed) or any other Person that prohibits Solicitation of business or competing with that employer or other Person. Employee affirms and represents that performance of his/her job duties and responsibilities for a Financial Institution does not, and will not, breach any agreement or covenant not to Solicit business, compete in business, or keep in confidence proprietary or confidential information acquired in confidence or in trust prior to Employee’s employment with a Financial Institution. Employee further represents that he/she has not retained any documents or information relating to Employee’s prior employers (other than Heritage or HopFed) that may be considered confidential or proprietary information and that Employee has not disclosed or used, and will not disclose or use, any information relating to his or her prior employer(s) in connection with Employee’s employment with a Financial Institution.
23. Return of Property. Upon termination of Employee’s employment, Employee shall immediately return to the Bank (if subsequent to the Effective Time) or Heritage (if prior to the Effective Time), all Banking Organizations documents and property, including, but not limited to, Confidential Information, computer discs, manuals, reports, files, memoranda, records, door and file keys, passwords and access codes, and any other physical or tangible things that Employee received, prepared, or helped prepare in connection with the Employee’s employment, and Employee shall not retain any copies, duplicates, reproductions or excerpts thereof. At the Bank’s or Heritage’s request, Employee shall provide written verification under the penalties for perjury of his/her compliance with this covenant.
24. Survival. Except as set forth below, the covenants in Sections 4, 5, 6 and 23 shall survive the termination of Employee’s employment with a Financial Institution regardless of the reason for termination. If the Merger is not consummated and the Merger Agreement is terminated, Sections 4, 5, 6 and 23 shall survive with respect to First Financial and the Bank, but shall not survive with respect to HopFed or Heritage.
[Signature Page to Follow]
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date indicated below.
FIRST FINANCIAL CORPORATION
By: /s/ Norman L. Lowery Date: January 7, 2019
Printed Name: Norman L. Lowery
Title: President & CEO
FIRST FINANCIAL BANK, N.A.
By: /s/ Norman L. Lowery Date: January 7, 2019
Printed Name: Norman L. Lowery
Title: President & CEO
HOPFED BANCORP, INC.
By: /s/ John E. Peck Date: January 7, 2019
Printed Name: John E. Peck
Title: President/CEO
HERITAGE BANK USA, INC.
By: /s/ John E. Peck Date: January 7, 2019
Printed Name: John E. Peck
Title: President/CEO
EMPLOYEE
Printed Name: Billy C. Duvall Date: January 7, 2019
Signature: /s/ Billy C. Duvall
| Not mentioned |
548_nda-16 | 548_nda-16_0 | Q: Receiving Party shall destroy or return some Confidential Information upon the termination of Agreement.
Text: Exhibit 10.8
NON-DISCLOSURE AND NON-SOLICITATION AGREEMENT
THIS NON-DISCLOSURE AND NON-SOLICITATION AGREEMENT (“Agreement”) is made and entered into, effective as of the date first written below, by and among First Financial Corporation (“First Financial”), First Financial Bank, N.A. (“Bank”), a wholly-owned subsidiary of First Financial, HopFed Bancorp, Inc. (“HopFed”), Heritage Bank USA, Inc., (“Heritage”), a wholly-owned subsidiary of HopFed, and Billy C. Duvall (“Employee”). “Banking Organization” shall mean First Financial, the Bank, HopFed, and/or Heritage. “Financial Institution” shall mean the Bank and/or Heritage. First Financial, the Bank, HopFed, Heritage and Employee may be collectively referenced as the “parties” or individually as a “party.”
WHEREAS, pursuant to that certain Agreement and Plan of Merger, dated January 7, 2019, by and between HopFed and First Financial (the “Merger Agreement”), HopFed shall be merged with and into First Financial (the “Merger”) effective as of the date and time provided in the Merger Agreement (the “Effective Time”); and
WHEREAS, Heritage will be merged into the Bank at the Effective Time or shortly thereafter; and
WHEREAS, Employee is currently an employee of Heritage and the Bank intends to offer employment to the Employee as an at-will employee to provide services for and on behalf of the Bank immediately upon the Effective Time;
WHEREAS, as a result of employment with Heritage up to the Effective Time and with the Bank thereafter, Employee had, has and will have access to Confidential Information (as defined below) and may have acquired or will acquire knowledge regarding Confidential Information, including, but not limited to, information regarding Customers or Potential Customers (as defined below), and a Banking Organization could be harmed if such Confidential Information were to be used, divulged or become known to any competitor of a Banking Organization or to any other Person (as defined below) or to any entity outside of a Banking Organization;
WHEREAS, Employee has developed or may develop contacts and business relationships with Customers or Potential Customers which could be used to the detriment of a Banking Organization and/or to solicit employees away from a Banking Organization; and
WHEREAS, each Banking Organization desires reasonable protection of its respective confidential business and customer information which such Banking Organization has developed and will develop over the years at substantial expense.
NOW, THEREFORE, the parties incorporate the above recitals, and in consideration of the mutual promises, covenants and agreements made herein, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Consideration/At-Will Employment.
a. This Agreement neither constitutes an employment contract or agreement to Employee for a stated period of time, nor does it alter Employee’s existing employment status.
b. In consideration of Employee’s promises, covenants and agreements set forth in this Agreement, (i) as of the date of this Agreement and up to the Effective Time Heritage shall maintain Employee’s employment with the compensation and benefits commensurate therewith, and (ii) effective as of the Effective Time, the Bank shall offer or maintain Employee’s employment as an at-will employee with the compensation and benefits commensurate therewith. For avoidance of doubt, following the Effective Time, Bank or Employee can terminate the employment at any time, with or without cause, and with or without prior notice. Employee understands and agrees, upon the Effective Time, that he/she will be an at-will employee of Bank and that this Agreement does not change or affect Employee’s employee-at-will status.
2. Duties. Employee shall devote his/her full working time and attention to the performance of those services for the Banking Organization which are assigned to him/her from time to time and to perform such services in a faithful, honest and diligent manner and in the best interest of such Banking Organization.
3. Definitions of Key Terms.
a. “Banking and Financial Services” shall mean those banking and related financial services of a Banking Organization or subsidiary thereof, including but not limited to, checking and savings accounts, health savings accounts, money market accounts, loans, credit cards, cash management services, lines of credit, investment services (such as IRAs, college savings plans, estate planning, investment planning, business planning), and trust services, provided during any period in which Employee served or will serve in any capacity for a Financial Institution and all banking and related financial services substantially similar to such banking and related financial services.
b. “Confidential Information” shall mean any and all materials, records, data, documents, lists, writings, and information (whether in writing, printed, electronically stored, computerized, on disk or otherwise, including, but not limited to, all copies, summaries, analyses, drafts, and extracts) relating or referring in any manner to trade secrets (as currently defined under applicable law, including, but not limited to, the Indiana Uniform Trade Secrets Act and any amendments or successor statutes) of a Banking Organization, as well as other non-public financial or proprietary information of a Banking Organization including, but not limited to, business reports, business plans, projections, income statements, profit and loss statements, business strategies and/or strategic plans, internal audits, sales information, sales techniques, business costs, product pricing, budgets, research and development, intellectual property, software and/or computer programs, marketing strategies or ideas, marketing plans or materials, business development plans or strategies, records or information relating to customers or account holders, customer lists, inventions, and processes, systems, methods, documentation or devices which are unique or proprietary to the business of or services or products of a Banking Organization. Confidential Information shall not include information that: (i) is or becomes readily or publicly available, not as a result of a violation of this Agreement or other obligation of confidence, directly or indirectly, of the disclosing party; (ii) is developed by other parties, including, but not limited to, subsequent employers of the Employee, independent of the knowledge or resources of the Employee based upon his or her prior access to a Banking Organization’s Confidential Information; (iii) is independently developed after the Employee’s termination of employment without reference to or use of the Confidential Information or materials based thereon; (iv) is based on the Employee’s personal experience, knowledge, enterprise and expertise in the delivery of Banking and Financial Services and which is general knowledge concerning the industry, not specific to a Banking Organization; or (v) is disclosed pursuant to the requirements of a court, administrative agency or other governmental agency.
c. “Customers” or “Customer” shall mean any Person to whom a Banking Organization rendered or provided Banking and Financial Services at any time during the one-year period prior to Employee’s termination of employment with a Financial Institution: (i) with whom Employee had any material contact (either directly or indirectly); (ii) which Employee managed, had responsibility for or regularly serviced while employed by the Financial Institution, provided, however, this shall not be construed to include supervising those who have such a relationship to the Customer; or, (iii) about which Employee obtained Confidential Information.
d. “Employees,” “Agents,” and “Independent Contractors” shall mean any and all persons employed or contracted by a Banking Organization or who were employed or contracted by a Banking Organization, as an employee, agent or independent contractor, within the six (6) month period prior to Employee’s termination of employment with either Financial Institution.
e. “Person” shall mean any individual, partnership, corporation, organization, bank, credit union, firm, association, limited liability company, trust, joint venture, company or other entity, body, agency or department thereof.
f. “Potential Customer” shall mean any Person that Employee directly solicited, targeted or specifically identified as a prospective or potential customer, or about which Employee obtained information on behalf of a Banking Organization for purposes of directly soliciting, targeting or specifically identifying as a prospective or potential customer, during the one (1) year period prior to Employee’s termination of employment with either Financial Institution.
g. “Solicit”, “Solicited” or “Solicitation” means any direct or indirect communication of any kind whatsoever, regardless of by whom initiated, inviting, advising, inducing, encouraging, enticing, or requesting either expressly or implicitly, any Person, in any manner, to take or refrain from taking action, provided, however, this definition does not include communications initiated by Customers or Potential Customers of their own initiative, without prompting or encouragement by Employee or anyone acting on Employee’s behalf.
4. Non-Disclosure of Confidential Information. During the course of Employee’s employment with a Financial Institution, Employee agrees that Employee has or will continue to become knowledgeable about, or come to be in possession of, Confidential Information. If such Confidential Information were to be divulged or become known to any competitor of a Banking Organization, or to any other Person outside of a Banking Organization, or if Employee were to consent to be employed by any competitor of a Banking Organization, or to engage in competition with a Banking Organization, such Banking Organization will be harmed. In addition, Employee has or may develop relationships with Customers or Potential Customers so that the Confidential Information could be used to Solicit the business of such Customer or Potential Customer away from a Banking Organization.
Employee shall not, directly or indirectly, use any Confidential Information for any purpose other than the benefit of a Banking Organization, and shall not directly or indirectly, disclose, communicate, deliver, exhibit or provide any Confidential Information to any Person, except other Employees or Agents of a Banking Organization who have a need to know such Confidential Information for a proper corporate or business purpose, as required in the normal course of Employee’s service as an employee. Nothing in this Section 4, or any other provision of this Agreement, shall be construed to prohibit Employee from reporting conduct to, providing truthful information to, or participating in any investigation or proceeding brought or conducted by any federal or state government agency or self-regulatory organization.
Employee specifically acknowledges that the Confidential Information, whether reduced to writing or maintained electronically or in the mind or memory of Employee and, whether compiled by a Banking Organization and/or the Employee, derives independent economic value from not being readily known to or ascertainable by proper means by others who can obtain economic value from its disclosure or use, that reasonable efforts have been put forth by each Banking Organization to maintain the secrecy of such information, that such information is the sole property of such Banking Organization and that any retention and/or use of such information during or after Employee’s employment with either Financial Institution (except in the course of performing the Employee’s duties of employment with a Financial Institution and except as otherwise set forth above) constitutes a misappropriation of a Banking Organization’s Confidential Information.
Employee agrees that all Confidential Information and all records, documents and materials relating to all Confidential Information (including all copies thereof) shall be and remain the sole and exclusive property of a Banking Organization, and upon Employee’s termination of employment, all such Confidential Information, whether in paper or electronic form, shall be returned to a Financial Institution in good condition, without Employee retaining a copy thereof, including, but not limited to, retaining an electronic copy on any electronic device regardless of whether such device is owned by Employee. At a Financial Institution’s request, Employee shall provide written verification, under the penalties for perjury, of his/her compliance with this covenant.
5. Non-Solicitation of Customers and Potential Customers. Employee acknowledges and agrees that by virtue of Employee’s position with a Banking Organization, Employee has or will have advantageous familiarity and personal contacts with Customers and Potential Customers and will have advantageous familiarity with the business operations and affairs of a Banking Organization. Employee further acknowledges and agrees that Employee has been or will be placed in a position that, were Employee to leave a Financial Institution to compete with the business of a Banking Organization, such entity from which the Employee departed would, upon violation of this Agreement, suffer irreparable harm and financial loss, as well as lost goodwill and Confidential Information. Therefore, in consideration of the covenants of all Financial Institutions contained herein, Employee agrees that during Employee’s employment with a Financial Institution, and for a period of one (1) year immediately following the termination of Employee’s employment with a Financial Institution (“Restriction Period”), for whatever reason and regardless of how Employee’s employment was terminated, Employee shall not, directly or indirectly (including, but not limited to, through other individuals, any partnership, corporation or business entity in which Employee has an ownership interest or serves as an officer, employee, independent contractor, representative, agent or consultant), either for Employee’s own benefit or the benefit of any other Person:
a. Solicit, divert, or take away (or attempt to Solicit, divert or take away) any Banking and Financial Services to or from any Customer or Potential Customer; or
b. advise, persuade or induce (or attempt to advise, persuade or induce) any Customer or Potential Customer to terminate, reduce, limit, or change the Customer’s services or business relationship, or the Potential Customer’s contemplated services or business relationship, with a Financial Institution; or
c. directly provide Banking and Financial Services to, or directly accept Banking and Financial Services from, any Customer or Potential Customer.
This Agreement is not intended to prevent Employee from accepting employment with an organization that competes with the Banking Organizations by offering Banking and Financial Services to Customers or Potential Customers. The Parties acknowledge that Employee may be associated with such an Organization and that such association may place Employee in a senior or supervisory role to those in the organization that have contact with Customers or Potential Customers. Employee shall not be in violation of this Agreement merely by engaging in such a role, which may include:
a. supervising those who provide Banking and Financial Services to Customers or Potential Customers;
b. engaging in credit review, underwriting, loan approval, or financial analysis of a Customer or Potential Customer’s business as a part of a supervisory or management role, so long as such activity does not require the disclosure of Confidential Information, direct contact with the Customer or Potential Customer, or the disclosure of Employee’s role to the Customer or Potential Customer;
c. performing or supervising those that perform data processing, accounting, rate review, document review or similar “back room” services related to a Customer or Potential Customer so long as the services do not require the disclosure of Confidential Information or contact with the Customer or Potential Customer.
6. Non-Solicitation of Employees and Others. In consideration of the covenants of all Financial Institutions contained herein, Employee agrees that during Employee’s employment with a Financial Institution, and for a period of two (2) years immediately following the termination of Employee’s employment with a Financial Institution, for whatever reason and regardless of how Employee’s employment was terminated, Employee shall not, directly or indirectly (including, but not limited to, through other individuals, any partnership, corporation or business entity in which Employee has an ownership interest or serves as an officer, employee, independent contractor, representative, agent or consultant), either for Employee’s own benefit or the benefit of any other Person:
c. Solicit, entice or persuade (or attempt to Solicit, entice or persuade) any Employee to terminate his or her employment with a Banking Organization, or offer or provide employment (whether such employment is with Employee or any other Person) either on a full-time or part-time, consulting or Independent Contractor basis; or
d. Solicit, entice or persuade (or attempt to Solicit, entice or persuade) any Independent Contractors or Agents to terminate their contract or relationship with a Banking Organization or discontinue providing services to a Banking Organization and/or Customers; or
e. Solicit, entice or persuade (or attempt to Solicit, entice or persuade) any suppliers, vendors or others who were supplying services or goods to a Banking Organization during the one year period prior to Employee’s termination, to terminate, reduce, limit or change their business or relationship with a Banking Organization.
7. Tolling of Covenants. Employee acknowledges that a Banking Organization is entitled to the full post-termination restrictions on the activities set forth in Sections 5 and 6, as applicable. Therefore, in the event any of the provisions of these Sections are breached by Employee, the commencement of the applicable post-termination restriction will not begin until Employee is in full compliance with Section 5 and/or 6.
8. Severability/Blue Pencil. Each of the provisions of this Agreement, including, but not limited to, the restrictive covenants in Sections 5 and 6, are distinct and severable, notwithstanding that the covenants may be set forth in one section for convenience. If any provision of this Agreement shall be determined to be invalid, illegal or unenforceable in whole or in part, for any reason, neither the validity of the remaining part of such provision nor the validity of any other provision of this Agreement shall in any way be affected. Should any particular restrictive covenant, provision or clause of this Agreement be held unreasonable or unenforceable for any reason, including without limitation, the time period, geographic area and/or scope of activity covered by such covenant, provision or clause, the parties acknowledge and agree that such covenant, provision or clause shall be given effect and enforce to whatever extent would be
reasonable and enforceable under applicable law. The parties expressly authorize a court of competent jurisdiction to modify or revise such provision to limit the covenants to cover the maximum period of time, range of activities or other restrictions as would be enforceable under Indiana law.
9. Available Relief. Employee agrees that a Banking Organization, or its successor or assigns, will suffer irreparable damage and injury and will not have an adequate remedy at law in the event of any breach by Employee of any provision of Sections 4, 5 or 6, herein. Accordingly, in the event of a breach or of a threatened or attempted breach by Employee of Sections 4, 5, or 6, in addition to all other remedies to which a Banking Organization is entitled under law, in equity, or otherwise (including, but not limited to, monetary damages), a Banking Organization or its assigns and successors, shall be entitled to a temporary restraining order and/or preliminary or permanent injunction (without the necessity of showing any actual damage) or a decree of specific performance and no bond or other security shall be required in that connection.
10. Enforcement/Attorneys’ Fees. In any action that is brought to enforce or interpret this Agreement, the prevailing party or its assigns and successors, shall be entitled to recover their reasonable attorneys’ and paralegal fees and expenses incurred in connection therewith. If a Banking Organization or its assigns and successors, institute any action or proceeding to enforce the provisions of this Agreement, Employee hereby waives all claims or defenses that a Banking Organization or its assigns and successors, have an adequate remedy at law, and Employee shall not urge in any such action or proceeding the claim or defense that such a remedy at law exists.
11. Assignments; Successors and Assigns. The rights and obligations of Employee hereunder are not assignable or delegable by Employee, and any prohibited assignment or delegation will be null and void. The Banking Organization may, without the consent of the Employee, assign this Agreement to any successor or in connection with any merger, consolidation, share exchange, combination, sale of stock or assets or similar transaction. The provisions hereof shall inure to the benefit of and be binding upon the successors and assigns of a Banking Organization.
12. Governing Law. This Agreement shall be interpreted under, subject to and governed by the laws of the State of Indiana, without consideration of the choice of law principles thereof, and all questions concerning its validity, construction and administration shall be determined in accordance with Indiana law.
13. Entire Agreement/Modification/Waiver. This Agreement constitutes the entire agreement among the parties relating to the subject matter hereof and expressly supersedes any prior agreements between the parties relating to the subject matter hereof. This Agreement shall not be terminated, amended or modified without the prior written consent of the Bank’s President and Chief Executive Officer and Employee. No failure or delay by a Banking Organization in exercising any right or remedy under this Agreement shall operate as a waiver thereof, nor shall any waiver by a Banking Organization under this Agreement operate or be construed as a continuing waiver or a waiver of any subsequent breach or noncompliance hereunder. No single or partial exercise of any right or remedy by a Banking Organization shall preclude any other or further exercise thereof or the exercise of any other right or remedy. Any waiver by a Banking Organization under this Agreement shall be in writing and signed by the Bank’s President and Chief Executive Officer. A waiver shall operate only as to the specific term or condition waived and will not constitute a waiver for the future or act on anything other than that which is specifically waived.
14. “No-Defense” Provision. The covenants set forth in this Agreement are essential terms and conditions to a Banking Organization employing or continuing to employ Employee, and shall be construed as independent of any other obligations or agreements between Employee and a Banking Organization. The existence of any claim or cause of action Employee may have against a Banking Organization, including, but not limited to, the alleged material breach by a Banking Organization of any agreement with Employee, shall not constitute a defense to the enforcement by a Banking Organization of the covenants and obligations in this Agreement and shall not relieve Employee of his or her obligations under this Agreement.
15. Jurisdiction and Venue. The parties agree that all suits, actions, proceedings, litigation, disputes, or claims relating to or arising out of this Agreement shall be filed and tried in the Superior or Circuit Court, as appropriate, of Vigo County, Indiana, or the United States District Court for the Southern District of Indiana, Terre Haute Division. In this regard, the parties hereby: (a) agree that venue shall be such stated courts; (b) irrevocably consent to service of process and to the jurisdiction and venue of such courts; and (c) irrevocably waive any claim of inconvenient forum if any such suit, claim, proceeding, litigation, dispute, or claim has been filed, brought, or made in any of such courts.
16. Construction. This Agreement is the result of negotiations between the parties, and no party shall be deemed to be the drafter of this Agreement; accordingly, this Agreement shall be interpreted and construed without any presumption or inference based upon or against the party causing this Agreement to be prepared. The language of this Agreement shall in all cases be construed as a whole, according to its fair meaning and not strictly for or against any party.
17. Review and Consultation. Employee acknowledges and agrees that he/she has read this Agreement in its entirety prior to executing it, understands the provisions and effects of this Agreement, and has consulted with or had the opportunity to consult with an attorney or other advisers as he/she deemed appropriate in connection with the execution of this Agreement.
18. Section Headings. Section headings are inserted into this Agreement for convenience only and shall not affect any construction or interpretation of this Agreement.
19. Reasonableness. Employee agrees and acknowledges that the covenants, restrictions and obligations set forth in this Agreement, including Sections 5 and 6, are reasonable and necessary to protect a Banking Organization. Employee agrees that the covenants, restrictions and obligations will not affect Employee’s ability to make a living.
20. Counterparts. This Agreement may be executed in any number of identical counterparts, each of which shall be deemed a duplicate original but all of which shall constitute one and the same agreement. The parties agree that signatures transmitted by facsimile or other electronic means are acceptable the same as original signatures for the execution of the Agreement.
21. Miscellaneous. Any change in Employee’s duties, responsibilities, title, position, compensation, or status, with a Financial Institution will not affect the validity or enforceability of this Agreement.
22. Representations. Employee represents and warrants that he/she is not a party to an agreement with his or her prior employer(s) (other than Heritage or HopFed) or any other Person that prohibits Solicitation of business or competing with that employer or other Person. Employee affirms and represents that performance of his/her job duties and responsibilities for a Financial Institution does not, and will not, breach any agreement or covenant not to Solicit business, compete in business, or keep in confidence proprietary or confidential information acquired in confidence or in trust prior to Employee’s employment with a Financial Institution. Employee further represents that he/she has not retained any documents or information relating to Employee’s prior employers (other than Heritage or HopFed) that may be considered confidential or proprietary information and that Employee has not disclosed or used, and will not disclose or use, any information relating to his or her prior employer(s) in connection with Employee’s employment with a Financial Institution.
23. Return of Property. Upon termination of Employee’s employment, Employee shall immediately return to the Bank (if subsequent to the Effective Time) or Heritage (if prior to the Effective Time), all Banking Organizations documents and property, including, but not limited to, Confidential Information, computer discs, manuals, reports, files, memoranda, records, door and file keys, passwords and access codes, and any other physical or tangible things that Employee received, prepared, or helped prepare in connection with the Employee’s employment, and Employee shall not retain any copies, duplicates, reproductions or excerpts thereof. At the Bank’s or Heritage’s request, Employee shall provide written verification under the penalties for perjury of his/her compliance with this covenant.
24. Survival. Except as set forth below, the covenants in Sections 4, 5, 6 and 23 shall survive the termination of Employee’s employment with a Financial Institution regardless of the reason for termination. If the Merger is not consummated and the Merger Agreement is terminated, Sections 4, 5, 6 and 23 shall survive with respect to First Financial and the Bank, but shall not survive with respect to HopFed or Heritage.
[Signature Page to Follow]
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date indicated below.
FIRST FINANCIAL CORPORATION
By: /s/ Norman L. Lowery Date: January 7, 2019
Printed Name: Norman L. Lowery
Title: President & CEO
FIRST FINANCIAL BANK, N.A.
By: /s/ Norman L. Lowery Date: January 7, 2019
Printed Name: Norman L. Lowery
Title: President & CEO
HOPFED BANCORP, INC.
By: /s/ John E. Peck Date: January 7, 2019
Printed Name: John E. Peck
Title: President/CEO
HERITAGE BANK USA, INC.
By: /s/ John E. Peck Date: January 7, 2019
Printed Name: John E. Peck
Title: President/CEO
EMPLOYEE
Printed Name: Billy C. Duvall Date: January 7, 2019
Signature: /s/ Billy C. Duvall
| Entailment |
548_nda-15 | 548_nda-15_0 | Q: Agreement shall not grant Receiving Party any right to Confidential Information.
Text: Exhibit 10.8
NON-DISCLOSURE AND NON-SOLICITATION AGREEMENT
THIS NON-DISCLOSURE AND NON-SOLICITATION AGREEMENT (“Agreement”) is made and entered into, effective as of the date first written below, by and among First Financial Corporation (“First Financial”), First Financial Bank, N.A. (“Bank”), a wholly-owned subsidiary of First Financial, HopFed Bancorp, Inc. (“HopFed”), Heritage Bank USA, Inc., (“Heritage”), a wholly-owned subsidiary of HopFed, and Billy C. Duvall (“Employee”). “Banking Organization” shall mean First Financial, the Bank, HopFed, and/or Heritage. “Financial Institution” shall mean the Bank and/or Heritage. First Financial, the Bank, HopFed, Heritage and Employee may be collectively referenced as the “parties” or individually as a “party.”
WHEREAS, pursuant to that certain Agreement and Plan of Merger, dated January 7, 2019, by and between HopFed and First Financial (the “Merger Agreement”), HopFed shall be merged with and into First Financial (the “Merger”) effective as of the date and time provided in the Merger Agreement (the “Effective Time”); and
WHEREAS, Heritage will be merged into the Bank at the Effective Time or shortly thereafter; and
WHEREAS, Employee is currently an employee of Heritage and the Bank intends to offer employment to the Employee as an at-will employee to provide services for and on behalf of the Bank immediately upon the Effective Time;
WHEREAS, as a result of employment with Heritage up to the Effective Time and with the Bank thereafter, Employee had, has and will have access to Confidential Information (as defined below) and may have acquired or will acquire knowledge regarding Confidential Information, including, but not limited to, information regarding Customers or Potential Customers (as defined below), and a Banking Organization could be harmed if such Confidential Information were to be used, divulged or become known to any competitor of a Banking Organization or to any other Person (as defined below) or to any entity outside of a Banking Organization;
WHEREAS, Employee has developed or may develop contacts and business relationships with Customers or Potential Customers which could be used to the detriment of a Banking Organization and/or to solicit employees away from a Banking Organization; and
WHEREAS, each Banking Organization desires reasonable protection of its respective confidential business and customer information which such Banking Organization has developed and will develop over the years at substantial expense.
NOW, THEREFORE, the parties incorporate the above recitals, and in consideration of the mutual promises, covenants and agreements made herein, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Consideration/At-Will Employment.
a. This Agreement neither constitutes an employment contract or agreement to Employee for a stated period of time, nor does it alter Employee’s existing employment status.
b. In consideration of Employee’s promises, covenants and agreements set forth in this Agreement, (i) as of the date of this Agreement and up to the Effective Time Heritage shall maintain Employee’s employment with the compensation and benefits commensurate therewith, and (ii) effective as of the Effective Time, the Bank shall offer or maintain Employee’s employment as an at-will employee with the compensation and benefits commensurate therewith. For avoidance of doubt, following the Effective Time, Bank or Employee can terminate the employment at any time, with or without cause, and with or without prior notice. Employee understands and agrees, upon the Effective Time, that he/she will be an at-will employee of Bank and that this Agreement does not change or affect Employee’s employee-at-will status.
2. Duties. Employee shall devote his/her full working time and attention to the performance of those services for the Banking Organization which are assigned to him/her from time to time and to perform such services in a faithful, honest and diligent manner and in the best interest of such Banking Organization.
3. Definitions of Key Terms.
a. “Banking and Financial Services” shall mean those banking and related financial services of a Banking Organization or subsidiary thereof, including but not limited to, checking and savings accounts, health savings accounts, money market accounts, loans, credit cards, cash management services, lines of credit, investment services (such as IRAs, college savings plans, estate planning, investment planning, business planning), and trust services, provided during any period in which Employee served or will serve in any capacity for a Financial Institution and all banking and related financial services substantially similar to such banking and related financial services.
b. “Confidential Information” shall mean any and all materials, records, data, documents, lists, writings, and information (whether in writing, printed, electronically stored, computerized, on disk or otherwise, including, but not limited to, all copies, summaries, analyses, drafts, and extracts) relating or referring in any manner to trade secrets (as currently defined under applicable law, including, but not limited to, the Indiana Uniform Trade Secrets Act and any amendments or successor statutes) of a Banking Organization, as well as other non-public financial or proprietary information of a Banking Organization including, but not limited to, business reports, business plans, projections, income statements, profit and loss statements, business strategies and/or strategic plans, internal audits, sales information, sales techniques, business costs, product pricing, budgets, research and development, intellectual property, software and/or computer programs, marketing strategies or ideas, marketing plans or materials, business development plans or strategies, records or information relating to customers or account holders, customer lists, inventions, and processes, systems, methods, documentation or devices which are unique or proprietary to the business of or services or products of a Banking Organization. Confidential Information shall not include information that: (i) is or becomes readily or publicly available, not as a result of a violation of this Agreement or other obligation of confidence, directly or indirectly, of the disclosing party; (ii) is developed by other parties, including, but not limited to, subsequent employers of the Employee, independent of the knowledge or resources of the Employee based upon his or her prior access to a Banking Organization’s Confidential Information; (iii) is independently developed after the Employee’s termination of employment without reference to or use of the Confidential Information or materials based thereon; (iv) is based on the Employee’s personal experience, knowledge, enterprise and expertise in the delivery of Banking and Financial Services and which is general knowledge concerning the industry, not specific to a Banking Organization; or (v) is disclosed pursuant to the requirements of a court, administrative agency or other governmental agency.
c. “Customers” or “Customer” shall mean any Person to whom a Banking Organization rendered or provided Banking and Financial Services at any time during the one-year period prior to Employee’s termination of employment with a Financial Institution: (i) with whom Employee had any material contact (either directly or indirectly); (ii) which Employee managed, had responsibility for or regularly serviced while employed by the Financial Institution, provided, however, this shall not be construed to include supervising those who have such a relationship to the Customer; or, (iii) about which Employee obtained Confidential Information.
d. “Employees,” “Agents,” and “Independent Contractors” shall mean any and all persons employed or contracted by a Banking Organization or who were employed or contracted by a Banking Organization, as an employee, agent or independent contractor, within the six (6) month period prior to Employee’s termination of employment with either Financial Institution.
e. “Person” shall mean any individual, partnership, corporation, organization, bank, credit union, firm, association, limited liability company, trust, joint venture, company or other entity, body, agency or department thereof.
f. “Potential Customer” shall mean any Person that Employee directly solicited, targeted or specifically identified as a prospective or potential customer, or about which Employee obtained information on behalf of a Banking Organization for purposes of directly soliciting, targeting or specifically identifying as a prospective or potential customer, during the one (1) year period prior to Employee’s termination of employment with either Financial Institution.
g. “Solicit”, “Solicited” or “Solicitation” means any direct or indirect communication of any kind whatsoever, regardless of by whom initiated, inviting, advising, inducing, encouraging, enticing, or requesting either expressly or implicitly, any Person, in any manner, to take or refrain from taking action, provided, however, this definition does not include communications initiated by Customers or Potential Customers of their own initiative, without prompting or encouragement by Employee or anyone acting on Employee’s behalf.
4. Non-Disclosure of Confidential Information. During the course of Employee’s employment with a Financial Institution, Employee agrees that Employee has or will continue to become knowledgeable about, or come to be in possession of, Confidential Information. If such Confidential Information were to be divulged or become known to any competitor of a Banking Organization, or to any other Person outside of a Banking Organization, or if Employee were to consent to be employed by any competitor of a Banking Organization, or to engage in competition with a Banking Organization, such Banking Organization will be harmed. In addition, Employee has or may develop relationships with Customers or Potential Customers so that the Confidential Information could be used to Solicit the business of such Customer or Potential Customer away from a Banking Organization.
Employee shall not, directly or indirectly, use any Confidential Information for any purpose other than the benefit of a Banking Organization, and shall not directly or indirectly, disclose, communicate, deliver, exhibit or provide any Confidential Information to any Person, except other Employees or Agents of a Banking Organization who have a need to know such Confidential Information for a proper corporate or business purpose, as required in the normal course of Employee’s service as an employee. Nothing in this Section 4, or any other provision of this Agreement, shall be construed to prohibit Employee from reporting conduct to, providing truthful information to, or participating in any investigation or proceeding brought or conducted by any federal or state government agency or self-regulatory organization.
Employee specifically acknowledges that the Confidential Information, whether reduced to writing or maintained electronically or in the mind or memory of Employee and, whether compiled by a Banking Organization and/or the Employee, derives independent economic value from not being readily known to or ascertainable by proper means by others who can obtain economic value from its disclosure or use, that reasonable efforts have been put forth by each Banking Organization to maintain the secrecy of such information, that such information is the sole property of such Banking Organization and that any retention and/or use of such information during or after Employee’s employment with either Financial Institution (except in the course of performing the Employee’s duties of employment with a Financial Institution and except as otherwise set forth above) constitutes a misappropriation of a Banking Organization’s Confidential Information.
Employee agrees that all Confidential Information and all records, documents and materials relating to all Confidential Information (including all copies thereof) shall be and remain the sole and exclusive property of a Banking Organization, and upon Employee’s termination of employment, all such Confidential Information, whether in paper or electronic form, shall be returned to a Financial Institution in good condition, without Employee retaining a copy thereof, including, but not limited to, retaining an electronic copy on any electronic device regardless of whether such device is owned by Employee. At a Financial Institution’s request, Employee shall provide written verification, under the penalties for perjury, of his/her compliance with this covenant.
5. Non-Solicitation of Customers and Potential Customers. Employee acknowledges and agrees that by virtue of Employee’s position with a Banking Organization, Employee has or will have advantageous familiarity and personal contacts with Customers and Potential Customers and will have advantageous familiarity with the business operations and affairs of a Banking Organization. Employee further acknowledges and agrees that Employee has been or will be placed in a position that, were Employee to leave a Financial Institution to compete with the business of a Banking Organization, such entity from which the Employee departed would, upon violation of this Agreement, suffer irreparable harm and financial loss, as well as lost goodwill and Confidential Information. Therefore, in consideration of the covenants of all Financial Institutions contained herein, Employee agrees that during Employee’s employment with a Financial Institution, and for a period of one (1) year immediately following the termination of Employee’s employment with a Financial Institution (“Restriction Period”), for whatever reason and regardless of how Employee’s employment was terminated, Employee shall not, directly or indirectly (including, but not limited to, through other individuals, any partnership, corporation or business entity in which Employee has an ownership interest or serves as an officer, employee, independent contractor, representative, agent or consultant), either for Employee’s own benefit or the benefit of any other Person:
a. Solicit, divert, or take away (or attempt to Solicit, divert or take away) any Banking and Financial Services to or from any Customer or Potential Customer; or
b. advise, persuade or induce (or attempt to advise, persuade or induce) any Customer or Potential Customer to terminate, reduce, limit, or change the Customer’s services or business relationship, or the Potential Customer’s contemplated services or business relationship, with a Financial Institution; or
c. directly provide Banking and Financial Services to, or directly accept Banking and Financial Services from, any Customer or Potential Customer.
This Agreement is not intended to prevent Employee from accepting employment with an organization that competes with the Banking Organizations by offering Banking and Financial Services to Customers or Potential Customers. The Parties acknowledge that Employee may be associated with such an Organization and that such association may place Employee in a senior or supervisory role to those in the organization that have contact with Customers or Potential Customers. Employee shall not be in violation of this Agreement merely by engaging in such a role, which may include:
a. supervising those who provide Banking and Financial Services to Customers or Potential Customers;
b. engaging in credit review, underwriting, loan approval, or financial analysis of a Customer or Potential Customer’s business as a part of a supervisory or management role, so long as such activity does not require the disclosure of Confidential Information, direct contact with the Customer or Potential Customer, or the disclosure of Employee’s role to the Customer or Potential Customer;
c. performing or supervising those that perform data processing, accounting, rate review, document review or similar “back room” services related to a Customer or Potential Customer so long as the services do not require the disclosure of Confidential Information or contact with the Customer or Potential Customer.
6. Non-Solicitation of Employees and Others. In consideration of the covenants of all Financial Institutions contained herein, Employee agrees that during Employee’s employment with a Financial Institution, and for a period of two (2) years immediately following the termination of Employee’s employment with a Financial Institution, for whatever reason and regardless of how Employee’s employment was terminated, Employee shall not, directly or indirectly (including, but not limited to, through other individuals, any partnership, corporation or business entity in which Employee has an ownership interest or serves as an officer, employee, independent contractor, representative, agent or consultant), either for Employee’s own benefit or the benefit of any other Person:
c. Solicit, entice or persuade (or attempt to Solicit, entice or persuade) any Employee to terminate his or her employment with a Banking Organization, or offer or provide employment (whether such employment is with Employee or any other Person) either on a full-time or part-time, consulting or Independent Contractor basis; or
d. Solicit, entice or persuade (or attempt to Solicit, entice or persuade) any Independent Contractors or Agents to terminate their contract or relationship with a Banking Organization or discontinue providing services to a Banking Organization and/or Customers; or
e. Solicit, entice or persuade (or attempt to Solicit, entice or persuade) any suppliers, vendors or others who were supplying services or goods to a Banking Organization during the one year period prior to Employee’s termination, to terminate, reduce, limit or change their business or relationship with a Banking Organization.
7. Tolling of Covenants. Employee acknowledges that a Banking Organization is entitled to the full post-termination restrictions on the activities set forth in Sections 5 and 6, as applicable. Therefore, in the event any of the provisions of these Sections are breached by Employee, the commencement of the applicable post-termination restriction will not begin until Employee is in full compliance with Section 5 and/or 6.
8. Severability/Blue Pencil. Each of the provisions of this Agreement, including, but not limited to, the restrictive covenants in Sections 5 and 6, are distinct and severable, notwithstanding that the covenants may be set forth in one section for convenience. If any provision of this Agreement shall be determined to be invalid, illegal or unenforceable in whole or in part, for any reason, neither the validity of the remaining part of such provision nor the validity of any other provision of this Agreement shall in any way be affected. Should any particular restrictive covenant, provision or clause of this Agreement be held unreasonable or unenforceable for any reason, including without limitation, the time period, geographic area and/or scope of activity covered by such covenant, provision or clause, the parties acknowledge and agree that such covenant, provision or clause shall be given effect and enforce to whatever extent would be
reasonable and enforceable under applicable law. The parties expressly authorize a court of competent jurisdiction to modify or revise such provision to limit the covenants to cover the maximum period of time, range of activities or other restrictions as would be enforceable under Indiana law.
9. Available Relief. Employee agrees that a Banking Organization, or its successor or assigns, will suffer irreparable damage and injury and will not have an adequate remedy at law in the event of any breach by Employee of any provision of Sections 4, 5 or 6, herein. Accordingly, in the event of a breach or of a threatened or attempted breach by Employee of Sections 4, 5, or 6, in addition to all other remedies to which a Banking Organization is entitled under law, in equity, or otherwise (including, but not limited to, monetary damages), a Banking Organization or its assigns and successors, shall be entitled to a temporary restraining order and/or preliminary or permanent injunction (without the necessity of showing any actual damage) or a decree of specific performance and no bond or other security shall be required in that connection.
10. Enforcement/Attorneys’ Fees. In any action that is brought to enforce or interpret this Agreement, the prevailing party or its assigns and successors, shall be entitled to recover their reasonable attorneys’ and paralegal fees and expenses incurred in connection therewith. If a Banking Organization or its assigns and successors, institute any action or proceeding to enforce the provisions of this Agreement, Employee hereby waives all claims or defenses that a Banking Organization or its assigns and successors, have an adequate remedy at law, and Employee shall not urge in any such action or proceeding the claim or defense that such a remedy at law exists.
11. Assignments; Successors and Assigns. The rights and obligations of Employee hereunder are not assignable or delegable by Employee, and any prohibited assignment or delegation will be null and void. The Banking Organization may, without the consent of the Employee, assign this Agreement to any successor or in connection with any merger, consolidation, share exchange, combination, sale of stock or assets or similar transaction. The provisions hereof shall inure to the benefit of and be binding upon the successors and assigns of a Banking Organization.
12. Governing Law. This Agreement shall be interpreted under, subject to and governed by the laws of the State of Indiana, without consideration of the choice of law principles thereof, and all questions concerning its validity, construction and administration shall be determined in accordance with Indiana law.
13. Entire Agreement/Modification/Waiver. This Agreement constitutes the entire agreement among the parties relating to the subject matter hereof and expressly supersedes any prior agreements between the parties relating to the subject matter hereof. This Agreement shall not be terminated, amended or modified without the prior written consent of the Bank’s President and Chief Executive Officer and Employee. No failure or delay by a Banking Organization in exercising any right or remedy under this Agreement shall operate as a waiver thereof, nor shall any waiver by a Banking Organization under this Agreement operate or be construed as a continuing waiver or a waiver of any subsequent breach or noncompliance hereunder. No single or partial exercise of any right or remedy by a Banking Organization shall preclude any other or further exercise thereof or the exercise of any other right or remedy. Any waiver by a Banking Organization under this Agreement shall be in writing and signed by the Bank’s President and Chief Executive Officer. A waiver shall operate only as to the specific term or condition waived and will not constitute a waiver for the future or act on anything other than that which is specifically waived.
14. “No-Defense” Provision. The covenants set forth in this Agreement are essential terms and conditions to a Banking Organization employing or continuing to employ Employee, and shall be construed as independent of any other obligations or agreements between Employee and a Banking Organization. The existence of any claim or cause of action Employee may have against a Banking Organization, including, but not limited to, the alleged material breach by a Banking Organization of any agreement with Employee, shall not constitute a defense to the enforcement by a Banking Organization of the covenants and obligations in this Agreement and shall not relieve Employee of his or her obligations under this Agreement.
15. Jurisdiction and Venue. The parties agree that all suits, actions, proceedings, litigation, disputes, or claims relating to or arising out of this Agreement shall be filed and tried in the Superior or Circuit Court, as appropriate, of Vigo County, Indiana, or the United States District Court for the Southern District of Indiana, Terre Haute Division. In this regard, the parties hereby: (a) agree that venue shall be such stated courts; (b) irrevocably consent to service of process and to the jurisdiction and venue of such courts; and (c) irrevocably waive any claim of inconvenient forum if any such suit, claim, proceeding, litigation, dispute, or claim has been filed, brought, or made in any of such courts.
16. Construction. This Agreement is the result of negotiations between the parties, and no party shall be deemed to be the drafter of this Agreement; accordingly, this Agreement shall be interpreted and construed without any presumption or inference based upon or against the party causing this Agreement to be prepared. The language of this Agreement shall in all cases be construed as a whole, according to its fair meaning and not strictly for or against any party.
17. Review and Consultation. Employee acknowledges and agrees that he/she has read this Agreement in its entirety prior to executing it, understands the provisions and effects of this Agreement, and has consulted with or had the opportunity to consult with an attorney or other advisers as he/she deemed appropriate in connection with the execution of this Agreement.
18. Section Headings. Section headings are inserted into this Agreement for convenience only and shall not affect any construction or interpretation of this Agreement.
19. Reasonableness. Employee agrees and acknowledges that the covenants, restrictions and obligations set forth in this Agreement, including Sections 5 and 6, are reasonable and necessary to protect a Banking Organization. Employee agrees that the covenants, restrictions and obligations will not affect Employee’s ability to make a living.
20. Counterparts. This Agreement may be executed in any number of identical counterparts, each of which shall be deemed a duplicate original but all of which shall constitute one and the same agreement. The parties agree that signatures transmitted by facsimile or other electronic means are acceptable the same as original signatures for the execution of the Agreement.
21. Miscellaneous. Any change in Employee’s duties, responsibilities, title, position, compensation, or status, with a Financial Institution will not affect the validity or enforceability of this Agreement.
22. Representations. Employee represents and warrants that he/she is not a party to an agreement with his or her prior employer(s) (other than Heritage or HopFed) or any other Person that prohibits Solicitation of business or competing with that employer or other Person. Employee affirms and represents that performance of his/her job duties and responsibilities for a Financial Institution does not, and will not, breach any agreement or covenant not to Solicit business, compete in business, or keep in confidence proprietary or confidential information acquired in confidence or in trust prior to Employee’s employment with a Financial Institution. Employee further represents that he/she has not retained any documents or information relating to Employee’s prior employers (other than Heritage or HopFed) that may be considered confidential or proprietary information and that Employee has not disclosed or used, and will not disclose or use, any information relating to his or her prior employer(s) in connection with Employee’s employment with a Financial Institution.
23. Return of Property. Upon termination of Employee’s employment, Employee shall immediately return to the Bank (if subsequent to the Effective Time) or Heritage (if prior to the Effective Time), all Banking Organizations documents and property, including, but not limited to, Confidential Information, computer discs, manuals, reports, files, memoranda, records, door and file keys, passwords and access codes, and any other physical or tangible things that Employee received, prepared, or helped prepare in connection with the Employee’s employment, and Employee shall not retain any copies, duplicates, reproductions or excerpts thereof. At the Bank’s or Heritage’s request, Employee shall provide written verification under the penalties for perjury of his/her compliance with this covenant.
24. Survival. Except as set forth below, the covenants in Sections 4, 5, 6 and 23 shall survive the termination of Employee’s employment with a Financial Institution regardless of the reason for termination. If the Merger is not consummated and the Merger Agreement is terminated, Sections 4, 5, 6 and 23 shall survive with respect to First Financial and the Bank, but shall not survive with respect to HopFed or Heritage.
[Signature Page to Follow]
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date indicated below.
FIRST FINANCIAL CORPORATION
By: /s/ Norman L. Lowery Date: January 7, 2019
Printed Name: Norman L. Lowery
Title: President & CEO
FIRST FINANCIAL BANK, N.A.
By: /s/ Norman L. Lowery Date: January 7, 2019
Printed Name: Norman L. Lowery
Title: President & CEO
HOPFED BANCORP, INC.
By: /s/ John E. Peck Date: January 7, 2019
Printed Name: John E. Peck
Title: President/CEO
HERITAGE BANK USA, INC.
By: /s/ John E. Peck Date: January 7, 2019
Printed Name: John E. Peck
Title: President/CEO
EMPLOYEE
Printed Name: Billy C. Duvall Date: January 7, 2019
Signature: /s/ Billy C. Duvall
| Entailment |
548_nda-10 | 548_nda-10_0 | Q: Receiving Party shall not disclose the fact that Agreement was agreed or negotiated.
Text: Exhibit 10.8
NON-DISCLOSURE AND NON-SOLICITATION AGREEMENT
THIS NON-DISCLOSURE AND NON-SOLICITATION AGREEMENT (“Agreement”) is made and entered into, effective as of the date first written below, by and among First Financial Corporation (“First Financial”), First Financial Bank, N.A. (“Bank”), a wholly-owned subsidiary of First Financial, HopFed Bancorp, Inc. (“HopFed”), Heritage Bank USA, Inc., (“Heritage”), a wholly-owned subsidiary of HopFed, and Billy C. Duvall (“Employee”). “Banking Organization” shall mean First Financial, the Bank, HopFed, and/or Heritage. “Financial Institution” shall mean the Bank and/or Heritage. First Financial, the Bank, HopFed, Heritage and Employee may be collectively referenced as the “parties” or individually as a “party.”
WHEREAS, pursuant to that certain Agreement and Plan of Merger, dated January 7, 2019, by and between HopFed and First Financial (the “Merger Agreement”), HopFed shall be merged with and into First Financial (the “Merger”) effective as of the date and time provided in the Merger Agreement (the “Effective Time”); and
WHEREAS, Heritage will be merged into the Bank at the Effective Time or shortly thereafter; and
WHEREAS, Employee is currently an employee of Heritage and the Bank intends to offer employment to the Employee as an at-will employee to provide services for and on behalf of the Bank immediately upon the Effective Time;
WHEREAS, as a result of employment with Heritage up to the Effective Time and with the Bank thereafter, Employee had, has and will have access to Confidential Information (as defined below) and may have acquired or will acquire knowledge regarding Confidential Information, including, but not limited to, information regarding Customers or Potential Customers (as defined below), and a Banking Organization could be harmed if such Confidential Information were to be used, divulged or become known to any competitor of a Banking Organization or to any other Person (as defined below) or to any entity outside of a Banking Organization;
WHEREAS, Employee has developed or may develop contacts and business relationships with Customers or Potential Customers which could be used to the detriment of a Banking Organization and/or to solicit employees away from a Banking Organization; and
WHEREAS, each Banking Organization desires reasonable protection of its respective confidential business and customer information which such Banking Organization has developed and will develop over the years at substantial expense.
NOW, THEREFORE, the parties incorporate the above recitals, and in consideration of the mutual promises, covenants and agreements made herein, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Consideration/At-Will Employment.
a. This Agreement neither constitutes an employment contract or agreement to Employee for a stated period of time, nor does it alter Employee’s existing employment status.
b. In consideration of Employee’s promises, covenants and agreements set forth in this Agreement, (i) as of the date of this Agreement and up to the Effective Time Heritage shall maintain Employee’s employment with the compensation and benefits commensurate therewith, and (ii) effective as of the Effective Time, the Bank shall offer or maintain Employee’s employment as an at-will employee with the compensation and benefits commensurate therewith. For avoidance of doubt, following the Effective Time, Bank or Employee can terminate the employment at any time, with or without cause, and with or without prior notice. Employee understands and agrees, upon the Effective Time, that he/she will be an at-will employee of Bank and that this Agreement does not change or affect Employee’s employee-at-will status.
2. Duties. Employee shall devote his/her full working time and attention to the performance of those services for the Banking Organization which are assigned to him/her from time to time and to perform such services in a faithful, honest and diligent manner and in the best interest of such Banking Organization.
3. Definitions of Key Terms.
a. “Banking and Financial Services” shall mean those banking and related financial services of a Banking Organization or subsidiary thereof, including but not limited to, checking and savings accounts, health savings accounts, money market accounts, loans, credit cards, cash management services, lines of credit, investment services (such as IRAs, college savings plans, estate planning, investment planning, business planning), and trust services, provided during any period in which Employee served or will serve in any capacity for a Financial Institution and all banking and related financial services substantially similar to such banking and related financial services.
b. “Confidential Information” shall mean any and all materials, records, data, documents, lists, writings, and information (whether in writing, printed, electronically stored, computerized, on disk or otherwise, including, but not limited to, all copies, summaries, analyses, drafts, and extracts) relating or referring in any manner to trade secrets (as currently defined under applicable law, including, but not limited to, the Indiana Uniform Trade Secrets Act and any amendments or successor statutes) of a Banking Organization, as well as other non-public financial or proprietary information of a Banking Organization including, but not limited to, business reports, business plans, projections, income statements, profit and loss statements, business strategies and/or strategic plans, internal audits, sales information, sales techniques, business costs, product pricing, budgets, research and development, intellectual property, software and/or computer programs, marketing strategies or ideas, marketing plans or materials, business development plans or strategies, records or information relating to customers or account holders, customer lists, inventions, and processes, systems, methods, documentation or devices which are unique or proprietary to the business of or services or products of a Banking Organization. Confidential Information shall not include information that: (i) is or becomes readily or publicly available, not as a result of a violation of this Agreement or other obligation of confidence, directly or indirectly, of the disclosing party; (ii) is developed by other parties, including, but not limited to, subsequent employers of the Employee, independent of the knowledge or resources of the Employee based upon his or her prior access to a Banking Organization’s Confidential Information; (iii) is independently developed after the Employee’s termination of employment without reference to or use of the Confidential Information or materials based thereon; (iv) is based on the Employee’s personal experience, knowledge, enterprise and expertise in the delivery of Banking and Financial Services and which is general knowledge concerning the industry, not specific to a Banking Organization; or (v) is disclosed pursuant to the requirements of a court, administrative agency or other governmental agency.
c. “Customers” or “Customer” shall mean any Person to whom a Banking Organization rendered or provided Banking and Financial Services at any time during the one-year period prior to Employee’s termination of employment with a Financial Institution: (i) with whom Employee had any material contact (either directly or indirectly); (ii) which Employee managed, had responsibility for or regularly serviced while employed by the Financial Institution, provided, however, this shall not be construed to include supervising those who have such a relationship to the Customer; or, (iii) about which Employee obtained Confidential Information.
d. “Employees,” “Agents,” and “Independent Contractors” shall mean any and all persons employed or contracted by a Banking Organization or who were employed or contracted by a Banking Organization, as an employee, agent or independent contractor, within the six (6) month period prior to Employee’s termination of employment with either Financial Institution.
e. “Person” shall mean any individual, partnership, corporation, organization, bank, credit union, firm, association, limited liability company, trust, joint venture, company or other entity, body, agency or department thereof.
f. “Potential Customer” shall mean any Person that Employee directly solicited, targeted or specifically identified as a prospective or potential customer, or about which Employee obtained information on behalf of a Banking Organization for purposes of directly soliciting, targeting or specifically identifying as a prospective or potential customer, during the one (1) year period prior to Employee’s termination of employment with either Financial Institution.
g. “Solicit”, “Solicited” or “Solicitation” means any direct or indirect communication of any kind whatsoever, regardless of by whom initiated, inviting, advising, inducing, encouraging, enticing, or requesting either expressly or implicitly, any Person, in any manner, to take or refrain from taking action, provided, however, this definition does not include communications initiated by Customers or Potential Customers of their own initiative, without prompting or encouragement by Employee or anyone acting on Employee’s behalf.
4. Non-Disclosure of Confidential Information. During the course of Employee’s employment with a Financial Institution, Employee agrees that Employee has or will continue to become knowledgeable about, or come to be in possession of, Confidential Information. If such Confidential Information were to be divulged or become known to any competitor of a Banking Organization, or to any other Person outside of a Banking Organization, or if Employee were to consent to be employed by any competitor of a Banking Organization, or to engage in competition with a Banking Organization, such Banking Organization will be harmed. In addition, Employee has or may develop relationships with Customers or Potential Customers so that the Confidential Information could be used to Solicit the business of such Customer or Potential Customer away from a Banking Organization.
Employee shall not, directly or indirectly, use any Confidential Information for any purpose other than the benefit of a Banking Organization, and shall not directly or indirectly, disclose, communicate, deliver, exhibit or provide any Confidential Information to any Person, except other Employees or Agents of a Banking Organization who have a need to know such Confidential Information for a proper corporate or business purpose, as required in the normal course of Employee’s service as an employee. Nothing in this Section 4, or any other provision of this Agreement, shall be construed to prohibit Employee from reporting conduct to, providing truthful information to, or participating in any investigation or proceeding brought or conducted by any federal or state government agency or self-regulatory organization.
Employee specifically acknowledges that the Confidential Information, whether reduced to writing or maintained electronically or in the mind or memory of Employee and, whether compiled by a Banking Organization and/or the Employee, derives independent economic value from not being readily known to or ascertainable by proper means by others who can obtain economic value from its disclosure or use, that reasonable efforts have been put forth by each Banking Organization to maintain the secrecy of such information, that such information is the sole property of such Banking Organization and that any retention and/or use of such information during or after Employee’s employment with either Financial Institution (except in the course of performing the Employee’s duties of employment with a Financial Institution and except as otherwise set forth above) constitutes a misappropriation of a Banking Organization’s Confidential Information.
Employee agrees that all Confidential Information and all records, documents and materials relating to all Confidential Information (including all copies thereof) shall be and remain the sole and exclusive property of a Banking Organization, and upon Employee’s termination of employment, all such Confidential Information, whether in paper or electronic form, shall be returned to a Financial Institution in good condition, without Employee retaining a copy thereof, including, but not limited to, retaining an electronic copy on any electronic device regardless of whether such device is owned by Employee. At a Financial Institution’s request, Employee shall provide written verification, under the penalties for perjury, of his/her compliance with this covenant.
5. Non-Solicitation of Customers and Potential Customers. Employee acknowledges and agrees that by virtue of Employee’s position with a Banking Organization, Employee has or will have advantageous familiarity and personal contacts with Customers and Potential Customers and will have advantageous familiarity with the business operations and affairs of a Banking Organization. Employee further acknowledges and agrees that Employee has been or will be placed in a position that, were Employee to leave a Financial Institution to compete with the business of a Banking Organization, such entity from which the Employee departed would, upon violation of this Agreement, suffer irreparable harm and financial loss, as well as lost goodwill and Confidential Information. Therefore, in consideration of the covenants of all Financial Institutions contained herein, Employee agrees that during Employee’s employment with a Financial Institution, and for a period of one (1) year immediately following the termination of Employee’s employment with a Financial Institution (“Restriction Period”), for whatever reason and regardless of how Employee’s employment was terminated, Employee shall not, directly or indirectly (including, but not limited to, through other individuals, any partnership, corporation or business entity in which Employee has an ownership interest or serves as an officer, employee, independent contractor, representative, agent or consultant), either for Employee’s own benefit or the benefit of any other Person:
a. Solicit, divert, or take away (or attempt to Solicit, divert or take away) any Banking and Financial Services to or from any Customer or Potential Customer; or
b. advise, persuade or induce (or attempt to advise, persuade or induce) any Customer or Potential Customer to terminate, reduce, limit, or change the Customer’s services or business relationship, or the Potential Customer’s contemplated services or business relationship, with a Financial Institution; or
c. directly provide Banking and Financial Services to, or directly accept Banking and Financial Services from, any Customer or Potential Customer.
This Agreement is not intended to prevent Employee from accepting employment with an organization that competes with the Banking Organizations by offering Banking and Financial Services to Customers or Potential Customers. The Parties acknowledge that Employee may be associated with such an Organization and that such association may place Employee in a senior or supervisory role to those in the organization that have contact with Customers or Potential Customers. Employee shall not be in violation of this Agreement merely by engaging in such a role, which may include:
a. supervising those who provide Banking and Financial Services to Customers or Potential Customers;
b. engaging in credit review, underwriting, loan approval, or financial analysis of a Customer or Potential Customer’s business as a part of a supervisory or management role, so long as such activity does not require the disclosure of Confidential Information, direct contact with the Customer or Potential Customer, or the disclosure of Employee’s role to the Customer or Potential Customer;
c. performing or supervising those that perform data processing, accounting, rate review, document review or similar “back room” services related to a Customer or Potential Customer so long as the services do not require the disclosure of Confidential Information or contact with the Customer or Potential Customer.
6. Non-Solicitation of Employees and Others. In consideration of the covenants of all Financial Institutions contained herein, Employee agrees that during Employee’s employment with a Financial Institution, and for a period of two (2) years immediately following the termination of Employee’s employment with a Financial Institution, for whatever reason and regardless of how Employee’s employment was terminated, Employee shall not, directly or indirectly (including, but not limited to, through other individuals, any partnership, corporation or business entity in which Employee has an ownership interest or serves as an officer, employee, independent contractor, representative, agent or consultant), either for Employee’s own benefit or the benefit of any other Person:
c. Solicit, entice or persuade (or attempt to Solicit, entice or persuade) any Employee to terminate his or her employment with a Banking Organization, or offer or provide employment (whether such employment is with Employee or any other Person) either on a full-time or part-time, consulting or Independent Contractor basis; or
d. Solicit, entice or persuade (or attempt to Solicit, entice or persuade) any Independent Contractors or Agents to terminate their contract or relationship with a Banking Organization or discontinue providing services to a Banking Organization and/or Customers; or
e. Solicit, entice or persuade (or attempt to Solicit, entice or persuade) any suppliers, vendors or others who were supplying services or goods to a Banking Organization during the one year period prior to Employee’s termination, to terminate, reduce, limit or change their business or relationship with a Banking Organization.
7. Tolling of Covenants. Employee acknowledges that a Banking Organization is entitled to the full post-termination restrictions on the activities set forth in Sections 5 and 6, as applicable. Therefore, in the event any of the provisions of these Sections are breached by Employee, the commencement of the applicable post-termination restriction will not begin until Employee is in full compliance with Section 5 and/or 6.
8. Severability/Blue Pencil. Each of the provisions of this Agreement, including, but not limited to, the restrictive covenants in Sections 5 and 6, are distinct and severable, notwithstanding that the covenants may be set forth in one section for convenience. If any provision of this Agreement shall be determined to be invalid, illegal or unenforceable in whole or in part, for any reason, neither the validity of the remaining part of such provision nor the validity of any other provision of this Agreement shall in any way be affected. Should any particular restrictive covenant, provision or clause of this Agreement be held unreasonable or unenforceable for any reason, including without limitation, the time period, geographic area and/or scope of activity covered by such covenant, provision or clause, the parties acknowledge and agree that such covenant, provision or clause shall be given effect and enforce to whatever extent would be
reasonable and enforceable under applicable law. The parties expressly authorize a court of competent jurisdiction to modify or revise such provision to limit the covenants to cover the maximum period of time, range of activities or other restrictions as would be enforceable under Indiana law.
9. Available Relief. Employee agrees that a Banking Organization, or its successor or assigns, will suffer irreparable damage and injury and will not have an adequate remedy at law in the event of any breach by Employee of any provision of Sections 4, 5 or 6, herein. Accordingly, in the event of a breach or of a threatened or attempted breach by Employee of Sections 4, 5, or 6, in addition to all other remedies to which a Banking Organization is entitled under law, in equity, or otherwise (including, but not limited to, monetary damages), a Banking Organization or its assigns and successors, shall be entitled to a temporary restraining order and/or preliminary or permanent injunction (without the necessity of showing any actual damage) or a decree of specific performance and no bond or other security shall be required in that connection.
10. Enforcement/Attorneys’ Fees. In any action that is brought to enforce or interpret this Agreement, the prevailing party or its assigns and successors, shall be entitled to recover their reasonable attorneys’ and paralegal fees and expenses incurred in connection therewith. If a Banking Organization or its assigns and successors, institute any action or proceeding to enforce the provisions of this Agreement, Employee hereby waives all claims or defenses that a Banking Organization or its assigns and successors, have an adequate remedy at law, and Employee shall not urge in any such action or proceeding the claim or defense that such a remedy at law exists.
11. Assignments; Successors and Assigns. The rights and obligations of Employee hereunder are not assignable or delegable by Employee, and any prohibited assignment or delegation will be null and void. The Banking Organization may, without the consent of the Employee, assign this Agreement to any successor or in connection with any merger, consolidation, share exchange, combination, sale of stock or assets or similar transaction. The provisions hereof shall inure to the benefit of and be binding upon the successors and assigns of a Banking Organization.
12. Governing Law. This Agreement shall be interpreted under, subject to and governed by the laws of the State of Indiana, without consideration of the choice of law principles thereof, and all questions concerning its validity, construction and administration shall be determined in accordance with Indiana law.
13. Entire Agreement/Modification/Waiver. This Agreement constitutes the entire agreement among the parties relating to the subject matter hereof and expressly supersedes any prior agreements between the parties relating to the subject matter hereof. This Agreement shall not be terminated, amended or modified without the prior written consent of the Bank’s President and Chief Executive Officer and Employee. No failure or delay by a Banking Organization in exercising any right or remedy under this Agreement shall operate as a waiver thereof, nor shall any waiver by a Banking Organization under this Agreement operate or be construed as a continuing waiver or a waiver of any subsequent breach or noncompliance hereunder. No single or partial exercise of any right or remedy by a Banking Organization shall preclude any other or further exercise thereof or the exercise of any other right or remedy. Any waiver by a Banking Organization under this Agreement shall be in writing and signed by the Bank’s President and Chief Executive Officer. A waiver shall operate only as to the specific term or condition waived and will not constitute a waiver for the future or act on anything other than that which is specifically waived.
14. “No-Defense” Provision. The covenants set forth in this Agreement are essential terms and conditions to a Banking Organization employing or continuing to employ Employee, and shall be construed as independent of any other obligations or agreements between Employee and a Banking Organization. The existence of any claim or cause of action Employee may have against a Banking Organization, including, but not limited to, the alleged material breach by a Banking Organization of any agreement with Employee, shall not constitute a defense to the enforcement by a Banking Organization of the covenants and obligations in this Agreement and shall not relieve Employee of his or her obligations under this Agreement.
15. Jurisdiction and Venue. The parties agree that all suits, actions, proceedings, litigation, disputes, or claims relating to or arising out of this Agreement shall be filed and tried in the Superior or Circuit Court, as appropriate, of Vigo County, Indiana, or the United States District Court for the Southern District of Indiana, Terre Haute Division. In this regard, the parties hereby: (a) agree that venue shall be such stated courts; (b) irrevocably consent to service of process and to the jurisdiction and venue of such courts; and (c) irrevocably waive any claim of inconvenient forum if any such suit, claim, proceeding, litigation, dispute, or claim has been filed, brought, or made in any of such courts.
16. Construction. This Agreement is the result of negotiations between the parties, and no party shall be deemed to be the drafter of this Agreement; accordingly, this Agreement shall be interpreted and construed without any presumption or inference based upon or against the party causing this Agreement to be prepared. The language of this Agreement shall in all cases be construed as a whole, according to its fair meaning and not strictly for or against any party.
17. Review and Consultation. Employee acknowledges and agrees that he/she has read this Agreement in its entirety prior to executing it, understands the provisions and effects of this Agreement, and has consulted with or had the opportunity to consult with an attorney or other advisers as he/she deemed appropriate in connection with the execution of this Agreement.
18. Section Headings. Section headings are inserted into this Agreement for convenience only and shall not affect any construction or interpretation of this Agreement.
19. Reasonableness. Employee agrees and acknowledges that the covenants, restrictions and obligations set forth in this Agreement, including Sections 5 and 6, are reasonable and necessary to protect a Banking Organization. Employee agrees that the covenants, restrictions and obligations will not affect Employee’s ability to make a living.
20. Counterparts. This Agreement may be executed in any number of identical counterparts, each of which shall be deemed a duplicate original but all of which shall constitute one and the same agreement. The parties agree that signatures transmitted by facsimile or other electronic means are acceptable the same as original signatures for the execution of the Agreement.
21. Miscellaneous. Any change in Employee’s duties, responsibilities, title, position, compensation, or status, with a Financial Institution will not affect the validity or enforceability of this Agreement.
22. Representations. Employee represents and warrants that he/she is not a party to an agreement with his or her prior employer(s) (other than Heritage or HopFed) or any other Person that prohibits Solicitation of business or competing with that employer or other Person. Employee affirms and represents that performance of his/her job duties and responsibilities for a Financial Institution does not, and will not, breach any agreement or covenant not to Solicit business, compete in business, or keep in confidence proprietary or confidential information acquired in confidence or in trust prior to Employee’s employment with a Financial Institution. Employee further represents that he/she has not retained any documents or information relating to Employee’s prior employers (other than Heritage or HopFed) that may be considered confidential or proprietary information and that Employee has not disclosed or used, and will not disclose or use, any information relating to his or her prior employer(s) in connection with Employee’s employment with a Financial Institution.
23. Return of Property. Upon termination of Employee’s employment, Employee shall immediately return to the Bank (if subsequent to the Effective Time) or Heritage (if prior to the Effective Time), all Banking Organizations documents and property, including, but not limited to, Confidential Information, computer discs, manuals, reports, files, memoranda, records, door and file keys, passwords and access codes, and any other physical or tangible things that Employee received, prepared, or helped prepare in connection with the Employee’s employment, and Employee shall not retain any copies, duplicates, reproductions or excerpts thereof. At the Bank’s or Heritage’s request, Employee shall provide written verification under the penalties for perjury of his/her compliance with this covenant.
24. Survival. Except as set forth below, the covenants in Sections 4, 5, 6 and 23 shall survive the termination of Employee’s employment with a Financial Institution regardless of the reason for termination. If the Merger is not consummated and the Merger Agreement is terminated, Sections 4, 5, 6 and 23 shall survive with respect to First Financial and the Bank, but shall not survive with respect to HopFed or Heritage.
[Signature Page to Follow]
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date indicated below.
FIRST FINANCIAL CORPORATION
By: /s/ Norman L. Lowery Date: January 7, 2019
Printed Name: Norman L. Lowery
Title: President & CEO
FIRST FINANCIAL BANK, N.A.
By: /s/ Norman L. Lowery Date: January 7, 2019
Printed Name: Norman L. Lowery
Title: President & CEO
HOPFED BANCORP, INC.
By: /s/ John E. Peck Date: January 7, 2019
Printed Name: John E. Peck
Title: President/CEO
HERITAGE BANK USA, INC.
By: /s/ John E. Peck Date: January 7, 2019
Printed Name: John E. Peck
Title: President/CEO
EMPLOYEE
Printed Name: Billy C. Duvall Date: January 7, 2019
Signature: /s/ Billy C. Duvall
| Not mentioned |
548_nda-2 | 548_nda-2_0 | Q: Confidential Information shall only include technical information.
Text: Exhibit 10.8
NON-DISCLOSURE AND NON-SOLICITATION AGREEMENT
THIS NON-DISCLOSURE AND NON-SOLICITATION AGREEMENT (“Agreement”) is made and entered into, effective as of the date first written below, by and among First Financial Corporation (“First Financial”), First Financial Bank, N.A. (“Bank”), a wholly-owned subsidiary of First Financial, HopFed Bancorp, Inc. (“HopFed”), Heritage Bank USA, Inc., (“Heritage”), a wholly-owned subsidiary of HopFed, and Billy C. Duvall (“Employee”). “Banking Organization” shall mean First Financial, the Bank, HopFed, and/or Heritage. “Financial Institution” shall mean the Bank and/or Heritage. First Financial, the Bank, HopFed, Heritage and Employee may be collectively referenced as the “parties” or individually as a “party.”
WHEREAS, pursuant to that certain Agreement and Plan of Merger, dated January 7, 2019, by and between HopFed and First Financial (the “Merger Agreement”), HopFed shall be merged with and into First Financial (the “Merger”) effective as of the date and time provided in the Merger Agreement (the “Effective Time”); and
WHEREAS, Heritage will be merged into the Bank at the Effective Time or shortly thereafter; and
WHEREAS, Employee is currently an employee of Heritage and the Bank intends to offer employment to the Employee as an at-will employee to provide services for and on behalf of the Bank immediately upon the Effective Time;
WHEREAS, as a result of employment with Heritage up to the Effective Time and with the Bank thereafter, Employee had, has and will have access to Confidential Information (as defined below) and may have acquired or will acquire knowledge regarding Confidential Information, including, but not limited to, information regarding Customers or Potential Customers (as defined below), and a Banking Organization could be harmed if such Confidential Information were to be used, divulged or become known to any competitor of a Banking Organization or to any other Person (as defined below) or to any entity outside of a Banking Organization;
WHEREAS, Employee has developed or may develop contacts and business relationships with Customers or Potential Customers which could be used to the detriment of a Banking Organization and/or to solicit employees away from a Banking Organization; and
WHEREAS, each Banking Organization desires reasonable protection of its respective confidential business and customer information which such Banking Organization has developed and will develop over the years at substantial expense.
NOW, THEREFORE, the parties incorporate the above recitals, and in consideration of the mutual promises, covenants and agreements made herein, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Consideration/At-Will Employment.
a. This Agreement neither constitutes an employment contract or agreement to Employee for a stated period of time, nor does it alter Employee’s existing employment status.
b. In consideration of Employee’s promises, covenants and agreements set forth in this Agreement, (i) as of the date of this Agreement and up to the Effective Time Heritage shall maintain Employee’s employment with the compensation and benefits commensurate therewith, and (ii) effective as of the Effective Time, the Bank shall offer or maintain Employee’s employment as an at-will employee with the compensation and benefits commensurate therewith. For avoidance of doubt, following the Effective Time, Bank or Employee can terminate the employment at any time, with or without cause, and with or without prior notice. Employee understands and agrees, upon the Effective Time, that he/she will be an at-will employee of Bank and that this Agreement does not change or affect Employee’s employee-at-will status.
2. Duties. Employee shall devote his/her full working time and attention to the performance of those services for the Banking Organization which are assigned to him/her from time to time and to perform such services in a faithful, honest and diligent manner and in the best interest of such Banking Organization.
3. Definitions of Key Terms.
a. “Banking and Financial Services” shall mean those banking and related financial services of a Banking Organization or subsidiary thereof, including but not limited to, checking and savings accounts, health savings accounts, money market accounts, loans, credit cards, cash management services, lines of credit, investment services (such as IRAs, college savings plans, estate planning, investment planning, business planning), and trust services, provided during any period in which Employee served or will serve in any capacity for a Financial Institution and all banking and related financial services substantially similar to such banking and related financial services.
b. “Confidential Information” shall mean any and all materials, records, data, documents, lists, writings, and information (whether in writing, printed, electronically stored, computerized, on disk or otherwise, including, but not limited to, all copies, summaries, analyses, drafts, and extracts) relating or referring in any manner to trade secrets (as currently defined under applicable law, including, but not limited to, the Indiana Uniform Trade Secrets Act and any amendments or successor statutes) of a Banking Organization, as well as other non-public financial or proprietary information of a Banking Organization including, but not limited to, business reports, business plans, projections, income statements, profit and loss statements, business strategies and/or strategic plans, internal audits, sales information, sales techniques, business costs, product pricing, budgets, research and development, intellectual property, software and/or computer programs, marketing strategies or ideas, marketing plans or materials, business development plans or strategies, records or information relating to customers or account holders, customer lists, inventions, and processes, systems, methods, documentation or devices which are unique or proprietary to the business of or services or products of a Banking Organization. Confidential Information shall not include information that: (i) is or becomes readily or publicly available, not as a result of a violation of this Agreement or other obligation of confidence, directly or indirectly, of the disclosing party; (ii) is developed by other parties, including, but not limited to, subsequent employers of the Employee, independent of the knowledge or resources of the Employee based upon his or her prior access to a Banking Organization’s Confidential Information; (iii) is independently developed after the Employee’s termination of employment without reference to or use of the Confidential Information or materials based thereon; (iv) is based on the Employee’s personal experience, knowledge, enterprise and expertise in the delivery of Banking and Financial Services and which is general knowledge concerning the industry, not specific to a Banking Organization; or (v) is disclosed pursuant to the requirements of a court, administrative agency or other governmental agency.
c. “Customers” or “Customer” shall mean any Person to whom a Banking Organization rendered or provided Banking and Financial Services at any time during the one-year period prior to Employee’s termination of employment with a Financial Institution: (i) with whom Employee had any material contact (either directly or indirectly); (ii) which Employee managed, had responsibility for or regularly serviced while employed by the Financial Institution, provided, however, this shall not be construed to include supervising those who have such a relationship to the Customer; or, (iii) about which Employee obtained Confidential Information.
d. “Employees,” “Agents,” and “Independent Contractors” shall mean any and all persons employed or contracted by a Banking Organization or who were employed or contracted by a Banking Organization, as an employee, agent or independent contractor, within the six (6) month period prior to Employee’s termination of employment with either Financial Institution.
e. “Person” shall mean any individual, partnership, corporation, organization, bank, credit union, firm, association, limited liability company, trust, joint venture, company or other entity, body, agency or department thereof.
f. “Potential Customer” shall mean any Person that Employee directly solicited, targeted or specifically identified as a prospective or potential customer, or about which Employee obtained information on behalf of a Banking Organization for purposes of directly soliciting, targeting or specifically identifying as a prospective or potential customer, during the one (1) year period prior to Employee’s termination of employment with either Financial Institution.
g. “Solicit”, “Solicited” or “Solicitation” means any direct or indirect communication of any kind whatsoever, regardless of by whom initiated, inviting, advising, inducing, encouraging, enticing, or requesting either expressly or implicitly, any Person, in any manner, to take or refrain from taking action, provided, however, this definition does not include communications initiated by Customers or Potential Customers of their own initiative, without prompting or encouragement by Employee or anyone acting on Employee’s behalf.
4. Non-Disclosure of Confidential Information. During the course of Employee’s employment with a Financial Institution, Employee agrees that Employee has or will continue to become knowledgeable about, or come to be in possession of, Confidential Information. If such Confidential Information were to be divulged or become known to any competitor of a Banking Organization, or to any other Person outside of a Banking Organization, or if Employee were to consent to be employed by any competitor of a Banking Organization, or to engage in competition with a Banking Organization, such Banking Organization will be harmed. In addition, Employee has or may develop relationships with Customers or Potential Customers so that the Confidential Information could be used to Solicit the business of such Customer or Potential Customer away from a Banking Organization.
Employee shall not, directly or indirectly, use any Confidential Information for any purpose other than the benefit of a Banking Organization, and shall not directly or indirectly, disclose, communicate, deliver, exhibit or provide any Confidential Information to any Person, except other Employees or Agents of a Banking Organization who have a need to know such Confidential Information for a proper corporate or business purpose, as required in the normal course of Employee’s service as an employee. Nothing in this Section 4, or any other provision of this Agreement, shall be construed to prohibit Employee from reporting conduct to, providing truthful information to, or participating in any investigation or proceeding brought or conducted by any federal or state government agency or self-regulatory organization.
Employee specifically acknowledges that the Confidential Information, whether reduced to writing or maintained electronically or in the mind or memory of Employee and, whether compiled by a Banking Organization and/or the Employee, derives independent economic value from not being readily known to or ascertainable by proper means by others who can obtain economic value from its disclosure or use, that reasonable efforts have been put forth by each Banking Organization to maintain the secrecy of such information, that such information is the sole property of such Banking Organization and that any retention and/or use of such information during or after Employee’s employment with either Financial Institution (except in the course of performing the Employee’s duties of employment with a Financial Institution and except as otherwise set forth above) constitutes a misappropriation of a Banking Organization’s Confidential Information.
Employee agrees that all Confidential Information and all records, documents and materials relating to all Confidential Information (including all copies thereof) shall be and remain the sole and exclusive property of a Banking Organization, and upon Employee’s termination of employment, all such Confidential Information, whether in paper or electronic form, shall be returned to a Financial Institution in good condition, without Employee retaining a copy thereof, including, but not limited to, retaining an electronic copy on any electronic device regardless of whether such device is owned by Employee. At a Financial Institution’s request, Employee shall provide written verification, under the penalties for perjury, of his/her compliance with this covenant.
5. Non-Solicitation of Customers and Potential Customers. Employee acknowledges and agrees that by virtue of Employee’s position with a Banking Organization, Employee has or will have advantageous familiarity and personal contacts with Customers and Potential Customers and will have advantageous familiarity with the business operations and affairs of a Banking Organization. Employee further acknowledges and agrees that Employee has been or will be placed in a position that, were Employee to leave a Financial Institution to compete with the business of a Banking Organization, such entity from which the Employee departed would, upon violation of this Agreement, suffer irreparable harm and financial loss, as well as lost goodwill and Confidential Information. Therefore, in consideration of the covenants of all Financial Institutions contained herein, Employee agrees that during Employee’s employment with a Financial Institution, and for a period of one (1) year immediately following the termination of Employee’s employment with a Financial Institution (“Restriction Period”), for whatever reason and regardless of how Employee’s employment was terminated, Employee shall not, directly or indirectly (including, but not limited to, through other individuals, any partnership, corporation or business entity in which Employee has an ownership interest or serves as an officer, employee, independent contractor, representative, agent or consultant), either for Employee’s own benefit or the benefit of any other Person:
a. Solicit, divert, or take away (or attempt to Solicit, divert or take away) any Banking and Financial Services to or from any Customer or Potential Customer; or
b. advise, persuade or induce (or attempt to advise, persuade or induce) any Customer or Potential Customer to terminate, reduce, limit, or change the Customer’s services or business relationship, or the Potential Customer’s contemplated services or business relationship, with a Financial Institution; or
c. directly provide Banking and Financial Services to, or directly accept Banking and Financial Services from, any Customer or Potential Customer.
This Agreement is not intended to prevent Employee from accepting employment with an organization that competes with the Banking Organizations by offering Banking and Financial Services to Customers or Potential Customers. The Parties acknowledge that Employee may be associated with such an Organization and that such association may place Employee in a senior or supervisory role to those in the organization that have contact with Customers or Potential Customers. Employee shall not be in violation of this Agreement merely by engaging in such a role, which may include:
a. supervising those who provide Banking and Financial Services to Customers or Potential Customers;
b. engaging in credit review, underwriting, loan approval, or financial analysis of a Customer or Potential Customer’s business as a part of a supervisory or management role, so long as such activity does not require the disclosure of Confidential Information, direct contact with the Customer or Potential Customer, or the disclosure of Employee’s role to the Customer or Potential Customer;
c. performing or supervising those that perform data processing, accounting, rate review, document review or similar “back room” services related to a Customer or Potential Customer so long as the services do not require the disclosure of Confidential Information or contact with the Customer or Potential Customer.
6. Non-Solicitation of Employees and Others. In consideration of the covenants of all Financial Institutions contained herein, Employee agrees that during Employee’s employment with a Financial Institution, and for a period of two (2) years immediately following the termination of Employee’s employment with a Financial Institution, for whatever reason and regardless of how Employee’s employment was terminated, Employee shall not, directly or indirectly (including, but not limited to, through other individuals, any partnership, corporation or business entity in which Employee has an ownership interest or serves as an officer, employee, independent contractor, representative, agent or consultant), either for Employee’s own benefit or the benefit of any other Person:
c. Solicit, entice or persuade (or attempt to Solicit, entice or persuade) any Employee to terminate his or her employment with a Banking Organization, or offer or provide employment (whether such employment is with Employee or any other Person) either on a full-time or part-time, consulting or Independent Contractor basis; or
d. Solicit, entice or persuade (or attempt to Solicit, entice or persuade) any Independent Contractors or Agents to terminate their contract or relationship with a Banking Organization or discontinue providing services to a Banking Organization and/or Customers; or
e. Solicit, entice or persuade (or attempt to Solicit, entice or persuade) any suppliers, vendors or others who were supplying services or goods to a Banking Organization during the one year period prior to Employee’s termination, to terminate, reduce, limit or change their business or relationship with a Banking Organization.
7. Tolling of Covenants. Employee acknowledges that a Banking Organization is entitled to the full post-termination restrictions on the activities set forth in Sections 5 and 6, as applicable. Therefore, in the event any of the provisions of these Sections are breached by Employee, the commencement of the applicable post-termination restriction will not begin until Employee is in full compliance with Section 5 and/or 6.
8. Severability/Blue Pencil. Each of the provisions of this Agreement, including, but not limited to, the restrictive covenants in Sections 5 and 6, are distinct and severable, notwithstanding that the covenants may be set forth in one section for convenience. If any provision of this Agreement shall be determined to be invalid, illegal or unenforceable in whole or in part, for any reason, neither the validity of the remaining part of such provision nor the validity of any other provision of this Agreement shall in any way be affected. Should any particular restrictive covenant, provision or clause of this Agreement be held unreasonable or unenforceable for any reason, including without limitation, the time period, geographic area and/or scope of activity covered by such covenant, provision or clause, the parties acknowledge and agree that such covenant, provision or clause shall be given effect and enforce to whatever extent would be
reasonable and enforceable under applicable law. The parties expressly authorize a court of competent jurisdiction to modify or revise such provision to limit the covenants to cover the maximum period of time, range of activities or other restrictions as would be enforceable under Indiana law.
9. Available Relief. Employee agrees that a Banking Organization, or its successor or assigns, will suffer irreparable damage and injury and will not have an adequate remedy at law in the event of any breach by Employee of any provision of Sections 4, 5 or 6, herein. Accordingly, in the event of a breach or of a threatened or attempted breach by Employee of Sections 4, 5, or 6, in addition to all other remedies to which a Banking Organization is entitled under law, in equity, or otherwise (including, but not limited to, monetary damages), a Banking Organization or its assigns and successors, shall be entitled to a temporary restraining order and/or preliminary or permanent injunction (without the necessity of showing any actual damage) or a decree of specific performance and no bond or other security shall be required in that connection.
10. Enforcement/Attorneys’ Fees. In any action that is brought to enforce or interpret this Agreement, the prevailing party or its assigns and successors, shall be entitled to recover their reasonable attorneys’ and paralegal fees and expenses incurred in connection therewith. If a Banking Organization or its assigns and successors, institute any action or proceeding to enforce the provisions of this Agreement, Employee hereby waives all claims or defenses that a Banking Organization or its assigns and successors, have an adequate remedy at law, and Employee shall not urge in any such action or proceeding the claim or defense that such a remedy at law exists.
11. Assignments; Successors and Assigns. The rights and obligations of Employee hereunder are not assignable or delegable by Employee, and any prohibited assignment or delegation will be null and void. The Banking Organization may, without the consent of the Employee, assign this Agreement to any successor or in connection with any merger, consolidation, share exchange, combination, sale of stock or assets or similar transaction. The provisions hereof shall inure to the benefit of and be binding upon the successors and assigns of a Banking Organization.
12. Governing Law. This Agreement shall be interpreted under, subject to and governed by the laws of the State of Indiana, without consideration of the choice of law principles thereof, and all questions concerning its validity, construction and administration shall be determined in accordance with Indiana law.
13. Entire Agreement/Modification/Waiver. This Agreement constitutes the entire agreement among the parties relating to the subject matter hereof and expressly supersedes any prior agreements between the parties relating to the subject matter hereof. This Agreement shall not be terminated, amended or modified without the prior written consent of the Bank’s President and Chief Executive Officer and Employee. No failure or delay by a Banking Organization in exercising any right or remedy under this Agreement shall operate as a waiver thereof, nor shall any waiver by a Banking Organization under this Agreement operate or be construed as a continuing waiver or a waiver of any subsequent breach or noncompliance hereunder. No single or partial exercise of any right or remedy by a Banking Organization shall preclude any other or further exercise thereof or the exercise of any other right or remedy. Any waiver by a Banking Organization under this Agreement shall be in writing and signed by the Bank’s President and Chief Executive Officer. A waiver shall operate only as to the specific term or condition waived and will not constitute a waiver for the future or act on anything other than that which is specifically waived.
14. “No-Defense” Provision. The covenants set forth in this Agreement are essential terms and conditions to a Banking Organization employing or continuing to employ Employee, and shall be construed as independent of any other obligations or agreements between Employee and a Banking Organization. The existence of any claim or cause of action Employee may have against a Banking Organization, including, but not limited to, the alleged material breach by a Banking Organization of any agreement with Employee, shall not constitute a defense to the enforcement by a Banking Organization of the covenants and obligations in this Agreement and shall not relieve Employee of his or her obligations under this Agreement.
15. Jurisdiction and Venue. The parties agree that all suits, actions, proceedings, litigation, disputes, or claims relating to or arising out of this Agreement shall be filed and tried in the Superior or Circuit Court, as appropriate, of Vigo County, Indiana, or the United States District Court for the Southern District of Indiana, Terre Haute Division. In this regard, the parties hereby: (a) agree that venue shall be such stated courts; (b) irrevocably consent to service of process and to the jurisdiction and venue of such courts; and (c) irrevocably waive any claim of inconvenient forum if any such suit, claim, proceeding, litigation, dispute, or claim has been filed, brought, or made in any of such courts.
16. Construction. This Agreement is the result of negotiations between the parties, and no party shall be deemed to be the drafter of this Agreement; accordingly, this Agreement shall be interpreted and construed without any presumption or inference based upon or against the party causing this Agreement to be prepared. The language of this Agreement shall in all cases be construed as a whole, according to its fair meaning and not strictly for or against any party.
17. Review and Consultation. Employee acknowledges and agrees that he/she has read this Agreement in its entirety prior to executing it, understands the provisions and effects of this Agreement, and has consulted with or had the opportunity to consult with an attorney or other advisers as he/she deemed appropriate in connection with the execution of this Agreement.
18. Section Headings. Section headings are inserted into this Agreement for convenience only and shall not affect any construction or interpretation of this Agreement.
19. Reasonableness. Employee agrees and acknowledges that the covenants, restrictions and obligations set forth in this Agreement, including Sections 5 and 6, are reasonable and necessary to protect a Banking Organization. Employee agrees that the covenants, restrictions and obligations will not affect Employee’s ability to make a living.
20. Counterparts. This Agreement may be executed in any number of identical counterparts, each of which shall be deemed a duplicate original but all of which shall constitute one and the same agreement. The parties agree that signatures transmitted by facsimile or other electronic means are acceptable the same as original signatures for the execution of the Agreement.
21. Miscellaneous. Any change in Employee’s duties, responsibilities, title, position, compensation, or status, with a Financial Institution will not affect the validity or enforceability of this Agreement.
22. Representations. Employee represents and warrants that he/she is not a party to an agreement with his or her prior employer(s) (other than Heritage or HopFed) or any other Person that prohibits Solicitation of business or competing with that employer or other Person. Employee affirms and represents that performance of his/her job duties and responsibilities for a Financial Institution does not, and will not, breach any agreement or covenant not to Solicit business, compete in business, or keep in confidence proprietary or confidential information acquired in confidence or in trust prior to Employee’s employment with a Financial Institution. Employee further represents that he/she has not retained any documents or information relating to Employee’s prior employers (other than Heritage or HopFed) that may be considered confidential or proprietary information and that Employee has not disclosed or used, and will not disclose or use, any information relating to his or her prior employer(s) in connection with Employee’s employment with a Financial Institution.
23. Return of Property. Upon termination of Employee’s employment, Employee shall immediately return to the Bank (if subsequent to the Effective Time) or Heritage (if prior to the Effective Time), all Banking Organizations documents and property, including, but not limited to, Confidential Information, computer discs, manuals, reports, files, memoranda, records, door and file keys, passwords and access codes, and any other physical or tangible things that Employee received, prepared, or helped prepare in connection with the Employee’s employment, and Employee shall not retain any copies, duplicates, reproductions or excerpts thereof. At the Bank’s or Heritage’s request, Employee shall provide written verification under the penalties for perjury of his/her compliance with this covenant.
24. Survival. Except as set forth below, the covenants in Sections 4, 5, 6 and 23 shall survive the termination of Employee’s employment with a Financial Institution regardless of the reason for termination. If the Merger is not consummated and the Merger Agreement is terminated, Sections 4, 5, 6 and 23 shall survive with respect to First Financial and the Bank, but shall not survive with respect to HopFed or Heritage.
[Signature Page to Follow]
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date indicated below.
FIRST FINANCIAL CORPORATION
By: /s/ Norman L. Lowery Date: January 7, 2019
Printed Name: Norman L. Lowery
Title: President & CEO
FIRST FINANCIAL BANK, N.A.
By: /s/ Norman L. Lowery Date: January 7, 2019
Printed Name: Norman L. Lowery
Title: President & CEO
HOPFED BANCORP, INC.
By: /s/ John E. Peck Date: January 7, 2019
Printed Name: John E. Peck
Title: President/CEO
HERITAGE BANK USA, INC.
By: /s/ John E. Peck Date: January 7, 2019
Printed Name: John E. Peck
Title: President/CEO
EMPLOYEE
Printed Name: Billy C. Duvall Date: January 7, 2019
Signature: /s/ Billy C. Duvall
| Contradiction |
548_nda-1 | 548_nda-1_0 | Q: All Confidential Information shall be expressly identified by the Disclosing Party.
Text: Exhibit 10.8
NON-DISCLOSURE AND NON-SOLICITATION AGREEMENT
THIS NON-DISCLOSURE AND NON-SOLICITATION AGREEMENT (“Agreement”) is made and entered into, effective as of the date first written below, by and among First Financial Corporation (“First Financial”), First Financial Bank, N.A. (“Bank”), a wholly-owned subsidiary of First Financial, HopFed Bancorp, Inc. (“HopFed”), Heritage Bank USA, Inc., (“Heritage”), a wholly-owned subsidiary of HopFed, and Billy C. Duvall (“Employee”). “Banking Organization” shall mean First Financial, the Bank, HopFed, and/or Heritage. “Financial Institution” shall mean the Bank and/or Heritage. First Financial, the Bank, HopFed, Heritage and Employee may be collectively referenced as the “parties” or individually as a “party.”
WHEREAS, pursuant to that certain Agreement and Plan of Merger, dated January 7, 2019, by and between HopFed and First Financial (the “Merger Agreement”), HopFed shall be merged with and into First Financial (the “Merger”) effective as of the date and time provided in the Merger Agreement (the “Effective Time”); and
WHEREAS, Heritage will be merged into the Bank at the Effective Time or shortly thereafter; and
WHEREAS, Employee is currently an employee of Heritage and the Bank intends to offer employment to the Employee as an at-will employee to provide services for and on behalf of the Bank immediately upon the Effective Time;
WHEREAS, as a result of employment with Heritage up to the Effective Time and with the Bank thereafter, Employee had, has and will have access to Confidential Information (as defined below) and may have acquired or will acquire knowledge regarding Confidential Information, including, but not limited to, information regarding Customers or Potential Customers (as defined below), and a Banking Organization could be harmed if such Confidential Information were to be used, divulged or become known to any competitor of a Banking Organization or to any other Person (as defined below) or to any entity outside of a Banking Organization;
WHEREAS, Employee has developed or may develop contacts and business relationships with Customers or Potential Customers which could be used to the detriment of a Banking Organization and/or to solicit employees away from a Banking Organization; and
WHEREAS, each Banking Organization desires reasonable protection of its respective confidential business and customer information which such Banking Organization has developed and will develop over the years at substantial expense.
NOW, THEREFORE, the parties incorporate the above recitals, and in consideration of the mutual promises, covenants and agreements made herein, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Consideration/At-Will Employment.
a. This Agreement neither constitutes an employment contract or agreement to Employee for a stated period of time, nor does it alter Employee’s existing employment status.
b. In consideration of Employee’s promises, covenants and agreements set forth in this Agreement, (i) as of the date of this Agreement and up to the Effective Time Heritage shall maintain Employee’s employment with the compensation and benefits commensurate therewith, and (ii) effective as of the Effective Time, the Bank shall offer or maintain Employee’s employment as an at-will employee with the compensation and benefits commensurate therewith. For avoidance of doubt, following the Effective Time, Bank or Employee can terminate the employment at any time, with or without cause, and with or without prior notice. Employee understands and agrees, upon the Effective Time, that he/she will be an at-will employee of Bank and that this Agreement does not change or affect Employee’s employee-at-will status.
2. Duties. Employee shall devote his/her full working time and attention to the performance of those services for the Banking Organization which are assigned to him/her from time to time and to perform such services in a faithful, honest and diligent manner and in the best interest of such Banking Organization.
3. Definitions of Key Terms.
a. “Banking and Financial Services” shall mean those banking and related financial services of a Banking Organization or subsidiary thereof, including but not limited to, checking and savings accounts, health savings accounts, money market accounts, loans, credit cards, cash management services, lines of credit, investment services (such as IRAs, college savings plans, estate planning, investment planning, business planning), and trust services, provided during any period in which Employee served or will serve in any capacity for a Financial Institution and all banking and related financial services substantially similar to such banking and related financial services.
b. “Confidential Information” shall mean any and all materials, records, data, documents, lists, writings, and information (whether in writing, printed, electronically stored, computerized, on disk or otherwise, including, but not limited to, all copies, summaries, analyses, drafts, and extracts) relating or referring in any manner to trade secrets (as currently defined under applicable law, including, but not limited to, the Indiana Uniform Trade Secrets Act and any amendments or successor statutes) of a Banking Organization, as well as other non-public financial or proprietary information of a Banking Organization including, but not limited to, business reports, business plans, projections, income statements, profit and loss statements, business strategies and/or strategic plans, internal audits, sales information, sales techniques, business costs, product pricing, budgets, research and development, intellectual property, software and/or computer programs, marketing strategies or ideas, marketing plans or materials, business development plans or strategies, records or information relating to customers or account holders, customer lists, inventions, and processes, systems, methods, documentation or devices which are unique or proprietary to the business of or services or products of a Banking Organization. Confidential Information shall not include information that: (i) is or becomes readily or publicly available, not as a result of a violation of this Agreement or other obligation of confidence, directly or indirectly, of the disclosing party; (ii) is developed by other parties, including, but not limited to, subsequent employers of the Employee, independent of the knowledge or resources of the Employee based upon his or her prior access to a Banking Organization’s Confidential Information; (iii) is independently developed after the Employee’s termination of employment without reference to or use of the Confidential Information or materials based thereon; (iv) is based on the Employee’s personal experience, knowledge, enterprise and expertise in the delivery of Banking and Financial Services and which is general knowledge concerning the industry, not specific to a Banking Organization; or (v) is disclosed pursuant to the requirements of a court, administrative agency or other governmental agency.
c. “Customers” or “Customer” shall mean any Person to whom a Banking Organization rendered or provided Banking and Financial Services at any time during the one-year period prior to Employee’s termination of employment with a Financial Institution: (i) with whom Employee had any material contact (either directly or indirectly); (ii) which Employee managed, had responsibility for or regularly serviced while employed by the Financial Institution, provided, however, this shall not be construed to include supervising those who have such a relationship to the Customer; or, (iii) about which Employee obtained Confidential Information.
d. “Employees,” “Agents,” and “Independent Contractors” shall mean any and all persons employed or contracted by a Banking Organization or who were employed or contracted by a Banking Organization, as an employee, agent or independent contractor, within the six (6) month period prior to Employee’s termination of employment with either Financial Institution.
e. “Person” shall mean any individual, partnership, corporation, organization, bank, credit union, firm, association, limited liability company, trust, joint venture, company or other entity, body, agency or department thereof.
f. “Potential Customer” shall mean any Person that Employee directly solicited, targeted or specifically identified as a prospective or potential customer, or about which Employee obtained information on behalf of a Banking Organization for purposes of directly soliciting, targeting or specifically identifying as a prospective or potential customer, during the one (1) year period prior to Employee’s termination of employment with either Financial Institution.
g. “Solicit”, “Solicited” or “Solicitation” means any direct or indirect communication of any kind whatsoever, regardless of by whom initiated, inviting, advising, inducing, encouraging, enticing, or requesting either expressly or implicitly, any Person, in any manner, to take or refrain from taking action, provided, however, this definition does not include communications initiated by Customers or Potential Customers of their own initiative, without prompting or encouragement by Employee or anyone acting on Employee’s behalf.
4. Non-Disclosure of Confidential Information. During the course of Employee’s employment with a Financial Institution, Employee agrees that Employee has or will continue to become knowledgeable about, or come to be in possession of, Confidential Information. If such Confidential Information were to be divulged or become known to any competitor of a Banking Organization, or to any other Person outside of a Banking Organization, or if Employee were to consent to be employed by any competitor of a Banking Organization, or to engage in competition with a Banking Organization, such Banking Organization will be harmed. In addition, Employee has or may develop relationships with Customers or Potential Customers so that the Confidential Information could be used to Solicit the business of such Customer or Potential Customer away from a Banking Organization.
Employee shall not, directly or indirectly, use any Confidential Information for any purpose other than the benefit of a Banking Organization, and shall not directly or indirectly, disclose, communicate, deliver, exhibit or provide any Confidential Information to any Person, except other Employees or Agents of a Banking Organization who have a need to know such Confidential Information for a proper corporate or business purpose, as required in the normal course of Employee’s service as an employee. Nothing in this Section 4, or any other provision of this Agreement, shall be construed to prohibit Employee from reporting conduct to, providing truthful information to, or participating in any investigation or proceeding brought or conducted by any federal or state government agency or self-regulatory organization.
Employee specifically acknowledges that the Confidential Information, whether reduced to writing or maintained electronically or in the mind or memory of Employee and, whether compiled by a Banking Organization and/or the Employee, derives independent economic value from not being readily known to or ascertainable by proper means by others who can obtain economic value from its disclosure or use, that reasonable efforts have been put forth by each Banking Organization to maintain the secrecy of such information, that such information is the sole property of such Banking Organization and that any retention and/or use of such information during or after Employee’s employment with either Financial Institution (except in the course of performing the Employee’s duties of employment with a Financial Institution and except as otherwise set forth above) constitutes a misappropriation of a Banking Organization’s Confidential Information.
Employee agrees that all Confidential Information and all records, documents and materials relating to all Confidential Information (including all copies thereof) shall be and remain the sole and exclusive property of a Banking Organization, and upon Employee’s termination of employment, all such Confidential Information, whether in paper or electronic form, shall be returned to a Financial Institution in good condition, without Employee retaining a copy thereof, including, but not limited to, retaining an electronic copy on any electronic device regardless of whether such device is owned by Employee. At a Financial Institution’s request, Employee shall provide written verification, under the penalties for perjury, of his/her compliance with this covenant.
5. Non-Solicitation of Customers and Potential Customers. Employee acknowledges and agrees that by virtue of Employee’s position with a Banking Organization, Employee has or will have advantageous familiarity and personal contacts with Customers and Potential Customers and will have advantageous familiarity with the business operations and affairs of a Banking Organization. Employee further acknowledges and agrees that Employee has been or will be placed in a position that, were Employee to leave a Financial Institution to compete with the business of a Banking Organization, such entity from which the Employee departed would, upon violation of this Agreement, suffer irreparable harm and financial loss, as well as lost goodwill and Confidential Information. Therefore, in consideration of the covenants of all Financial Institutions contained herein, Employee agrees that during Employee’s employment with a Financial Institution, and for a period of one (1) year immediately following the termination of Employee’s employment with a Financial Institution (“Restriction Period”), for whatever reason and regardless of how Employee’s employment was terminated, Employee shall not, directly or indirectly (including, but not limited to, through other individuals, any partnership, corporation or business entity in which Employee has an ownership interest or serves as an officer, employee, independent contractor, representative, agent or consultant), either for Employee’s own benefit or the benefit of any other Person:
a. Solicit, divert, or take away (or attempt to Solicit, divert or take away) any Banking and Financial Services to or from any Customer or Potential Customer; or
b. advise, persuade or induce (or attempt to advise, persuade or induce) any Customer or Potential Customer to terminate, reduce, limit, or change the Customer’s services or business relationship, or the Potential Customer’s contemplated services or business relationship, with a Financial Institution; or
c. directly provide Banking and Financial Services to, or directly accept Banking and Financial Services from, any Customer or Potential Customer.
This Agreement is not intended to prevent Employee from accepting employment with an organization that competes with the Banking Organizations by offering Banking and Financial Services to Customers or Potential Customers. The Parties acknowledge that Employee may be associated with such an Organization and that such association may place Employee in a senior or supervisory role to those in the organization that have contact with Customers or Potential Customers. Employee shall not be in violation of this Agreement merely by engaging in such a role, which may include:
a. supervising those who provide Banking and Financial Services to Customers or Potential Customers;
b. engaging in credit review, underwriting, loan approval, or financial analysis of a Customer or Potential Customer’s business as a part of a supervisory or management role, so long as such activity does not require the disclosure of Confidential Information, direct contact with the Customer or Potential Customer, or the disclosure of Employee’s role to the Customer or Potential Customer;
c. performing or supervising those that perform data processing, accounting, rate review, document review or similar “back room” services related to a Customer or Potential Customer so long as the services do not require the disclosure of Confidential Information or contact with the Customer or Potential Customer.
6. Non-Solicitation of Employees and Others. In consideration of the covenants of all Financial Institutions contained herein, Employee agrees that during Employee’s employment with a Financial Institution, and for a period of two (2) years immediately following the termination of Employee’s employment with a Financial Institution, for whatever reason and regardless of how Employee’s employment was terminated, Employee shall not, directly or indirectly (including, but not limited to, through other individuals, any partnership, corporation or business entity in which Employee has an ownership interest or serves as an officer, employee, independent contractor, representative, agent or consultant), either for Employee’s own benefit or the benefit of any other Person:
c. Solicit, entice or persuade (or attempt to Solicit, entice or persuade) any Employee to terminate his or her employment with a Banking Organization, or offer or provide employment (whether such employment is with Employee or any other Person) either on a full-time or part-time, consulting or Independent Contractor basis; or
d. Solicit, entice or persuade (or attempt to Solicit, entice or persuade) any Independent Contractors or Agents to terminate their contract or relationship with a Banking Organization or discontinue providing services to a Banking Organization and/or Customers; or
e. Solicit, entice or persuade (or attempt to Solicit, entice or persuade) any suppliers, vendors or others who were supplying services or goods to a Banking Organization during the one year period prior to Employee’s termination, to terminate, reduce, limit or change their business or relationship with a Banking Organization.
7. Tolling of Covenants. Employee acknowledges that a Banking Organization is entitled to the full post-termination restrictions on the activities set forth in Sections 5 and 6, as applicable. Therefore, in the event any of the provisions of these Sections are breached by Employee, the commencement of the applicable post-termination restriction will not begin until Employee is in full compliance with Section 5 and/or 6.
8. Severability/Blue Pencil. Each of the provisions of this Agreement, including, but not limited to, the restrictive covenants in Sections 5 and 6, are distinct and severable, notwithstanding that the covenants may be set forth in one section for convenience. If any provision of this Agreement shall be determined to be invalid, illegal or unenforceable in whole or in part, for any reason, neither the validity of the remaining part of such provision nor the validity of any other provision of this Agreement shall in any way be affected. Should any particular restrictive covenant, provision or clause of this Agreement be held unreasonable or unenforceable for any reason, including without limitation, the time period, geographic area and/or scope of activity covered by such covenant, provision or clause, the parties acknowledge and agree that such covenant, provision or clause shall be given effect and enforce to whatever extent would be
reasonable and enforceable under applicable law. The parties expressly authorize a court of competent jurisdiction to modify or revise such provision to limit the covenants to cover the maximum period of time, range of activities or other restrictions as would be enforceable under Indiana law.
9. Available Relief. Employee agrees that a Banking Organization, or its successor or assigns, will suffer irreparable damage and injury and will not have an adequate remedy at law in the event of any breach by Employee of any provision of Sections 4, 5 or 6, herein. Accordingly, in the event of a breach or of a threatened or attempted breach by Employee of Sections 4, 5, or 6, in addition to all other remedies to which a Banking Organization is entitled under law, in equity, or otherwise (including, but not limited to, monetary damages), a Banking Organization or its assigns and successors, shall be entitled to a temporary restraining order and/or preliminary or permanent injunction (without the necessity of showing any actual damage) or a decree of specific performance and no bond or other security shall be required in that connection.
10. Enforcement/Attorneys’ Fees. In any action that is brought to enforce or interpret this Agreement, the prevailing party or its assigns and successors, shall be entitled to recover their reasonable attorneys’ and paralegal fees and expenses incurred in connection therewith. If a Banking Organization or its assigns and successors, institute any action or proceeding to enforce the provisions of this Agreement, Employee hereby waives all claims or defenses that a Banking Organization or its assigns and successors, have an adequate remedy at law, and Employee shall not urge in any such action or proceeding the claim or defense that such a remedy at law exists.
11. Assignments; Successors and Assigns. The rights and obligations of Employee hereunder are not assignable or delegable by Employee, and any prohibited assignment or delegation will be null and void. The Banking Organization may, without the consent of the Employee, assign this Agreement to any successor or in connection with any merger, consolidation, share exchange, combination, sale of stock or assets or similar transaction. The provisions hereof shall inure to the benefit of and be binding upon the successors and assigns of a Banking Organization.
12. Governing Law. This Agreement shall be interpreted under, subject to and governed by the laws of the State of Indiana, without consideration of the choice of law principles thereof, and all questions concerning its validity, construction and administration shall be determined in accordance with Indiana law.
13. Entire Agreement/Modification/Waiver. This Agreement constitutes the entire agreement among the parties relating to the subject matter hereof and expressly supersedes any prior agreements between the parties relating to the subject matter hereof. This Agreement shall not be terminated, amended or modified without the prior written consent of the Bank’s President and Chief Executive Officer and Employee. No failure or delay by a Banking Organization in exercising any right or remedy under this Agreement shall operate as a waiver thereof, nor shall any waiver by a Banking Organization under this Agreement operate or be construed as a continuing waiver or a waiver of any subsequent breach or noncompliance hereunder. No single or partial exercise of any right or remedy by a Banking Organization shall preclude any other or further exercise thereof or the exercise of any other right or remedy. Any waiver by a Banking Organization under this Agreement shall be in writing and signed by the Bank’s President and Chief Executive Officer. A waiver shall operate only as to the specific term or condition waived and will not constitute a waiver for the future or act on anything other than that which is specifically waived.
14. “No-Defense” Provision. The covenants set forth in this Agreement are essential terms and conditions to a Banking Organization employing or continuing to employ Employee, and shall be construed as independent of any other obligations or agreements between Employee and a Banking Organization. The existence of any claim or cause of action Employee may have against a Banking Organization, including, but not limited to, the alleged material breach by a Banking Organization of any agreement with Employee, shall not constitute a defense to the enforcement by a Banking Organization of the covenants and obligations in this Agreement and shall not relieve Employee of his or her obligations under this Agreement.
15. Jurisdiction and Venue. The parties agree that all suits, actions, proceedings, litigation, disputes, or claims relating to or arising out of this Agreement shall be filed and tried in the Superior or Circuit Court, as appropriate, of Vigo County, Indiana, or the United States District Court for the Southern District of Indiana, Terre Haute Division. In this regard, the parties hereby: (a) agree that venue shall be such stated courts; (b) irrevocably consent to service of process and to the jurisdiction and venue of such courts; and (c) irrevocably waive any claim of inconvenient forum if any such suit, claim, proceeding, litigation, dispute, or claim has been filed, brought, or made in any of such courts.
16. Construction. This Agreement is the result of negotiations between the parties, and no party shall be deemed to be the drafter of this Agreement; accordingly, this Agreement shall be interpreted and construed without any presumption or inference based upon or against the party causing this Agreement to be prepared. The language of this Agreement shall in all cases be construed as a whole, according to its fair meaning and not strictly for or against any party.
17. Review and Consultation. Employee acknowledges and agrees that he/she has read this Agreement in its entirety prior to executing it, understands the provisions and effects of this Agreement, and has consulted with or had the opportunity to consult with an attorney or other advisers as he/she deemed appropriate in connection with the execution of this Agreement.
18. Section Headings. Section headings are inserted into this Agreement for convenience only and shall not affect any construction or interpretation of this Agreement.
19. Reasonableness. Employee agrees and acknowledges that the covenants, restrictions and obligations set forth in this Agreement, including Sections 5 and 6, are reasonable and necessary to protect a Banking Organization. Employee agrees that the covenants, restrictions and obligations will not affect Employee’s ability to make a living.
20. Counterparts. This Agreement may be executed in any number of identical counterparts, each of which shall be deemed a duplicate original but all of which shall constitute one and the same agreement. The parties agree that signatures transmitted by facsimile or other electronic means are acceptable the same as original signatures for the execution of the Agreement.
21. Miscellaneous. Any change in Employee’s duties, responsibilities, title, position, compensation, or status, with a Financial Institution will not affect the validity or enforceability of this Agreement.
22. Representations. Employee represents and warrants that he/she is not a party to an agreement with his or her prior employer(s) (other than Heritage or HopFed) or any other Person that prohibits Solicitation of business or competing with that employer or other Person. Employee affirms and represents that performance of his/her job duties and responsibilities for a Financial Institution does not, and will not, breach any agreement or covenant not to Solicit business, compete in business, or keep in confidence proprietary or confidential information acquired in confidence or in trust prior to Employee’s employment with a Financial Institution. Employee further represents that he/she has not retained any documents or information relating to Employee’s prior employers (other than Heritage or HopFed) that may be considered confidential or proprietary information and that Employee has not disclosed or used, and will not disclose or use, any information relating to his or her prior employer(s) in connection with Employee’s employment with a Financial Institution.
23. Return of Property. Upon termination of Employee’s employment, Employee shall immediately return to the Bank (if subsequent to the Effective Time) or Heritage (if prior to the Effective Time), all Banking Organizations documents and property, including, but not limited to, Confidential Information, computer discs, manuals, reports, files, memoranda, records, door and file keys, passwords and access codes, and any other physical or tangible things that Employee received, prepared, or helped prepare in connection with the Employee’s employment, and Employee shall not retain any copies, duplicates, reproductions or excerpts thereof. At the Bank’s or Heritage’s request, Employee shall provide written verification under the penalties for perjury of his/her compliance with this covenant.
24. Survival. Except as set forth below, the covenants in Sections 4, 5, 6 and 23 shall survive the termination of Employee’s employment with a Financial Institution regardless of the reason for termination. If the Merger is not consummated and the Merger Agreement is terminated, Sections 4, 5, 6 and 23 shall survive with respect to First Financial and the Bank, but shall not survive with respect to HopFed or Heritage.
[Signature Page to Follow]
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date indicated below.
FIRST FINANCIAL CORPORATION
By: /s/ Norman L. Lowery Date: January 7, 2019
Printed Name: Norman L. Lowery
Title: President & CEO
FIRST FINANCIAL BANK, N.A.
By: /s/ Norman L. Lowery Date: January 7, 2019
Printed Name: Norman L. Lowery
Title: President & CEO
HOPFED BANCORP, INC.
By: /s/ John E. Peck Date: January 7, 2019
Printed Name: John E. Peck
Title: President/CEO
HERITAGE BANK USA, INC.
By: /s/ John E. Peck Date: January 7, 2019
Printed Name: John E. Peck
Title: President/CEO
EMPLOYEE
Printed Name: Billy C. Duvall Date: January 7, 2019
Signature: /s/ Billy C. Duvall
| Not mentioned |
548_nda-19 | 548_nda-19_0 | Q: Some obligations of Agreement may survive termination of Agreement.
Text: Exhibit 10.8
NON-DISCLOSURE AND NON-SOLICITATION AGREEMENT
THIS NON-DISCLOSURE AND NON-SOLICITATION AGREEMENT (“Agreement”) is made and entered into, effective as of the date first written below, by and among First Financial Corporation (“First Financial”), First Financial Bank, N.A. (“Bank”), a wholly-owned subsidiary of First Financial, HopFed Bancorp, Inc. (“HopFed”), Heritage Bank USA, Inc., (“Heritage”), a wholly-owned subsidiary of HopFed, and Billy C. Duvall (“Employee”). “Banking Organization” shall mean First Financial, the Bank, HopFed, and/or Heritage. “Financial Institution” shall mean the Bank and/or Heritage. First Financial, the Bank, HopFed, Heritage and Employee may be collectively referenced as the “parties” or individually as a “party.”
WHEREAS, pursuant to that certain Agreement and Plan of Merger, dated January 7, 2019, by and between HopFed and First Financial (the “Merger Agreement”), HopFed shall be merged with and into First Financial (the “Merger”) effective as of the date and time provided in the Merger Agreement (the “Effective Time”); and
WHEREAS, Heritage will be merged into the Bank at the Effective Time or shortly thereafter; and
WHEREAS, Employee is currently an employee of Heritage and the Bank intends to offer employment to the Employee as an at-will employee to provide services for and on behalf of the Bank immediately upon the Effective Time;
WHEREAS, as a result of employment with Heritage up to the Effective Time and with the Bank thereafter, Employee had, has and will have access to Confidential Information (as defined below) and may have acquired or will acquire knowledge regarding Confidential Information, including, but not limited to, information regarding Customers or Potential Customers (as defined below), and a Banking Organization could be harmed if such Confidential Information were to be used, divulged or become known to any competitor of a Banking Organization or to any other Person (as defined below) or to any entity outside of a Banking Organization;
WHEREAS, Employee has developed or may develop contacts and business relationships with Customers or Potential Customers which could be used to the detriment of a Banking Organization and/or to solicit employees away from a Banking Organization; and
WHEREAS, each Banking Organization desires reasonable protection of its respective confidential business and customer information which such Banking Organization has developed and will develop over the years at substantial expense.
NOW, THEREFORE, the parties incorporate the above recitals, and in consideration of the mutual promises, covenants and agreements made herein, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Consideration/At-Will Employment.
a. This Agreement neither constitutes an employment contract or agreement to Employee for a stated period of time, nor does it alter Employee’s existing employment status.
b. In consideration of Employee’s promises, covenants and agreements set forth in this Agreement, (i) as of the date of this Agreement and up to the Effective Time Heritage shall maintain Employee’s employment with the compensation and benefits commensurate therewith, and (ii) effective as of the Effective Time, the Bank shall offer or maintain Employee’s employment as an at-will employee with the compensation and benefits commensurate therewith. For avoidance of doubt, following the Effective Time, Bank or Employee can terminate the employment at any time, with or without cause, and with or without prior notice. Employee understands and agrees, upon the Effective Time, that he/she will be an at-will employee of Bank and that this Agreement does not change or affect Employee’s employee-at-will status.
2. Duties. Employee shall devote his/her full working time and attention to the performance of those services for the Banking Organization which are assigned to him/her from time to time and to perform such services in a faithful, honest and diligent manner and in the best interest of such Banking Organization.
3. Definitions of Key Terms.
a. “Banking and Financial Services” shall mean those banking and related financial services of a Banking Organization or subsidiary thereof, including but not limited to, checking and savings accounts, health savings accounts, money market accounts, loans, credit cards, cash management services, lines of credit, investment services (such as IRAs, college savings plans, estate planning, investment planning, business planning), and trust services, provided during any period in which Employee served or will serve in any capacity for a Financial Institution and all banking and related financial services substantially similar to such banking and related financial services.
b. “Confidential Information” shall mean any and all materials, records, data, documents, lists, writings, and information (whether in writing, printed, electronically stored, computerized, on disk or otherwise, including, but not limited to, all copies, summaries, analyses, drafts, and extracts) relating or referring in any manner to trade secrets (as currently defined under applicable law, including, but not limited to, the Indiana Uniform Trade Secrets Act and any amendments or successor statutes) of a Banking Organization, as well as other non-public financial or proprietary information of a Banking Organization including, but not limited to, business reports, business plans, projections, income statements, profit and loss statements, business strategies and/or strategic plans, internal audits, sales information, sales techniques, business costs, product pricing, budgets, research and development, intellectual property, software and/or computer programs, marketing strategies or ideas, marketing plans or materials, business development plans or strategies, records or information relating to customers or account holders, customer lists, inventions, and processes, systems, methods, documentation or devices which are unique or proprietary to the business of or services or products of a Banking Organization. Confidential Information shall not include information that: (i) is or becomes readily or publicly available, not as a result of a violation of this Agreement or other obligation of confidence, directly or indirectly, of the disclosing party; (ii) is developed by other parties, including, but not limited to, subsequent employers of the Employee, independent of the knowledge or resources of the Employee based upon his or her prior access to a Banking Organization’s Confidential Information; (iii) is independently developed after the Employee’s termination of employment without reference to or use of the Confidential Information or materials based thereon; (iv) is based on the Employee’s personal experience, knowledge, enterprise and expertise in the delivery of Banking and Financial Services and which is general knowledge concerning the industry, not specific to a Banking Organization; or (v) is disclosed pursuant to the requirements of a court, administrative agency or other governmental agency.
c. “Customers” or “Customer” shall mean any Person to whom a Banking Organization rendered or provided Banking and Financial Services at any time during the one-year period prior to Employee’s termination of employment with a Financial Institution: (i) with whom Employee had any material contact (either directly or indirectly); (ii) which Employee managed, had responsibility for or regularly serviced while employed by the Financial Institution, provided, however, this shall not be construed to include supervising those who have such a relationship to the Customer; or, (iii) about which Employee obtained Confidential Information.
d. “Employees,” “Agents,” and “Independent Contractors” shall mean any and all persons employed or contracted by a Banking Organization or who were employed or contracted by a Banking Organization, as an employee, agent or independent contractor, within the six (6) month period prior to Employee’s termination of employment with either Financial Institution.
e. “Person” shall mean any individual, partnership, corporation, organization, bank, credit union, firm, association, limited liability company, trust, joint venture, company or other entity, body, agency or department thereof.
f. “Potential Customer” shall mean any Person that Employee directly solicited, targeted or specifically identified as a prospective or potential customer, or about which Employee obtained information on behalf of a Banking Organization for purposes of directly soliciting, targeting or specifically identifying as a prospective or potential customer, during the one (1) year period prior to Employee’s termination of employment with either Financial Institution.
g. “Solicit”, “Solicited” or “Solicitation” means any direct or indirect communication of any kind whatsoever, regardless of by whom initiated, inviting, advising, inducing, encouraging, enticing, or requesting either expressly or implicitly, any Person, in any manner, to take or refrain from taking action, provided, however, this definition does not include communications initiated by Customers or Potential Customers of their own initiative, without prompting or encouragement by Employee or anyone acting on Employee’s behalf.
4. Non-Disclosure of Confidential Information. During the course of Employee’s employment with a Financial Institution, Employee agrees that Employee has or will continue to become knowledgeable about, or come to be in possession of, Confidential Information. If such Confidential Information were to be divulged or become known to any competitor of a Banking Organization, or to any other Person outside of a Banking Organization, or if Employee were to consent to be employed by any competitor of a Banking Organization, or to engage in competition with a Banking Organization, such Banking Organization will be harmed. In addition, Employee has or may develop relationships with Customers or Potential Customers so that the Confidential Information could be used to Solicit the business of such Customer or Potential Customer away from a Banking Organization.
Employee shall not, directly or indirectly, use any Confidential Information for any purpose other than the benefit of a Banking Organization, and shall not directly or indirectly, disclose, communicate, deliver, exhibit or provide any Confidential Information to any Person, except other Employees or Agents of a Banking Organization who have a need to know such Confidential Information for a proper corporate or business purpose, as required in the normal course of Employee’s service as an employee. Nothing in this Section 4, or any other provision of this Agreement, shall be construed to prohibit Employee from reporting conduct to, providing truthful information to, or participating in any investigation or proceeding brought or conducted by any federal or state government agency or self-regulatory organization.
Employee specifically acknowledges that the Confidential Information, whether reduced to writing or maintained electronically or in the mind or memory of Employee and, whether compiled by a Banking Organization and/or the Employee, derives independent economic value from not being readily known to or ascertainable by proper means by others who can obtain economic value from its disclosure or use, that reasonable efforts have been put forth by each Banking Organization to maintain the secrecy of such information, that such information is the sole property of such Banking Organization and that any retention and/or use of such information during or after Employee’s employment with either Financial Institution (except in the course of performing the Employee’s duties of employment with a Financial Institution and except as otherwise set forth above) constitutes a misappropriation of a Banking Organization’s Confidential Information.
Employee agrees that all Confidential Information and all records, documents and materials relating to all Confidential Information (including all copies thereof) shall be and remain the sole and exclusive property of a Banking Organization, and upon Employee’s termination of employment, all such Confidential Information, whether in paper or electronic form, shall be returned to a Financial Institution in good condition, without Employee retaining a copy thereof, including, but not limited to, retaining an electronic copy on any electronic device regardless of whether such device is owned by Employee. At a Financial Institution’s request, Employee shall provide written verification, under the penalties for perjury, of his/her compliance with this covenant.
5. Non-Solicitation of Customers and Potential Customers. Employee acknowledges and agrees that by virtue of Employee’s position with a Banking Organization, Employee has or will have advantageous familiarity and personal contacts with Customers and Potential Customers and will have advantageous familiarity with the business operations and affairs of a Banking Organization. Employee further acknowledges and agrees that Employee has been or will be placed in a position that, were Employee to leave a Financial Institution to compete with the business of a Banking Organization, such entity from which the Employee departed would, upon violation of this Agreement, suffer irreparable harm and financial loss, as well as lost goodwill and Confidential Information. Therefore, in consideration of the covenants of all Financial Institutions contained herein, Employee agrees that during Employee’s employment with a Financial Institution, and for a period of one (1) year immediately following the termination of Employee’s employment with a Financial Institution (“Restriction Period”), for whatever reason and regardless of how Employee’s employment was terminated, Employee shall not, directly or indirectly (including, but not limited to, through other individuals, any partnership, corporation or business entity in which Employee has an ownership interest or serves as an officer, employee, independent contractor, representative, agent or consultant), either for Employee’s own benefit or the benefit of any other Person:
a. Solicit, divert, or take away (or attempt to Solicit, divert or take away) any Banking and Financial Services to or from any Customer or Potential Customer; or
b. advise, persuade or induce (or attempt to advise, persuade or induce) any Customer or Potential Customer to terminate, reduce, limit, or change the Customer’s services or business relationship, or the Potential Customer’s contemplated services or business relationship, with a Financial Institution; or
c. directly provide Banking and Financial Services to, or directly accept Banking and Financial Services from, any Customer or Potential Customer.
This Agreement is not intended to prevent Employee from accepting employment with an organization that competes with the Banking Organizations by offering Banking and Financial Services to Customers or Potential Customers. The Parties acknowledge that Employee may be associated with such an Organization and that such association may place Employee in a senior or supervisory role to those in the organization that have contact with Customers or Potential Customers. Employee shall not be in violation of this Agreement merely by engaging in such a role, which may include:
a. supervising those who provide Banking and Financial Services to Customers or Potential Customers;
b. engaging in credit review, underwriting, loan approval, or financial analysis of a Customer or Potential Customer’s business as a part of a supervisory or management role, so long as such activity does not require the disclosure of Confidential Information, direct contact with the Customer or Potential Customer, or the disclosure of Employee’s role to the Customer or Potential Customer;
c. performing or supervising those that perform data processing, accounting, rate review, document review or similar “back room” services related to a Customer or Potential Customer so long as the services do not require the disclosure of Confidential Information or contact with the Customer or Potential Customer.
6. Non-Solicitation of Employees and Others. In consideration of the covenants of all Financial Institutions contained herein, Employee agrees that during Employee’s employment with a Financial Institution, and for a period of two (2) years immediately following the termination of Employee’s employment with a Financial Institution, for whatever reason and regardless of how Employee’s employment was terminated, Employee shall not, directly or indirectly (including, but not limited to, through other individuals, any partnership, corporation or business entity in which Employee has an ownership interest or serves as an officer, employee, independent contractor, representative, agent or consultant), either for Employee’s own benefit or the benefit of any other Person:
c. Solicit, entice or persuade (or attempt to Solicit, entice or persuade) any Employee to terminate his or her employment with a Banking Organization, or offer or provide employment (whether such employment is with Employee or any other Person) either on a full-time or part-time, consulting or Independent Contractor basis; or
d. Solicit, entice or persuade (or attempt to Solicit, entice or persuade) any Independent Contractors or Agents to terminate their contract or relationship with a Banking Organization or discontinue providing services to a Banking Organization and/or Customers; or
e. Solicit, entice or persuade (or attempt to Solicit, entice or persuade) any suppliers, vendors or others who were supplying services or goods to a Banking Organization during the one year period prior to Employee’s termination, to terminate, reduce, limit or change their business or relationship with a Banking Organization.
7. Tolling of Covenants. Employee acknowledges that a Banking Organization is entitled to the full post-termination restrictions on the activities set forth in Sections 5 and 6, as applicable. Therefore, in the event any of the provisions of these Sections are breached by Employee, the commencement of the applicable post-termination restriction will not begin until Employee is in full compliance with Section 5 and/or 6.
8. Severability/Blue Pencil. Each of the provisions of this Agreement, including, but not limited to, the restrictive covenants in Sections 5 and 6, are distinct and severable, notwithstanding that the covenants may be set forth in one section for convenience. If any provision of this Agreement shall be determined to be invalid, illegal or unenforceable in whole or in part, for any reason, neither the validity of the remaining part of such provision nor the validity of any other provision of this Agreement shall in any way be affected. Should any particular restrictive covenant, provision or clause of this Agreement be held unreasonable or unenforceable for any reason, including without limitation, the time period, geographic area and/or scope of activity covered by such covenant, provision or clause, the parties acknowledge and agree that such covenant, provision or clause shall be given effect and enforce to whatever extent would be
reasonable and enforceable under applicable law. The parties expressly authorize a court of competent jurisdiction to modify or revise such provision to limit the covenants to cover the maximum period of time, range of activities or other restrictions as would be enforceable under Indiana law.
9. Available Relief. Employee agrees that a Banking Organization, or its successor or assigns, will suffer irreparable damage and injury and will not have an adequate remedy at law in the event of any breach by Employee of any provision of Sections 4, 5 or 6, herein. Accordingly, in the event of a breach or of a threatened or attempted breach by Employee of Sections 4, 5, or 6, in addition to all other remedies to which a Banking Organization is entitled under law, in equity, or otherwise (including, but not limited to, monetary damages), a Banking Organization or its assigns and successors, shall be entitled to a temporary restraining order and/or preliminary or permanent injunction (without the necessity of showing any actual damage) or a decree of specific performance and no bond or other security shall be required in that connection.
10. Enforcement/Attorneys’ Fees. In any action that is brought to enforce or interpret this Agreement, the prevailing party or its assigns and successors, shall be entitled to recover their reasonable attorneys’ and paralegal fees and expenses incurred in connection therewith. If a Banking Organization or its assigns and successors, institute any action or proceeding to enforce the provisions of this Agreement, Employee hereby waives all claims or defenses that a Banking Organization or its assigns and successors, have an adequate remedy at law, and Employee shall not urge in any such action or proceeding the claim or defense that such a remedy at law exists.
11. Assignments; Successors and Assigns. The rights and obligations of Employee hereunder are not assignable or delegable by Employee, and any prohibited assignment or delegation will be null and void. The Banking Organization may, without the consent of the Employee, assign this Agreement to any successor or in connection with any merger, consolidation, share exchange, combination, sale of stock or assets or similar transaction. The provisions hereof shall inure to the benefit of and be binding upon the successors and assigns of a Banking Organization.
12. Governing Law. This Agreement shall be interpreted under, subject to and governed by the laws of the State of Indiana, without consideration of the choice of law principles thereof, and all questions concerning its validity, construction and administration shall be determined in accordance with Indiana law.
13. Entire Agreement/Modification/Waiver. This Agreement constitutes the entire agreement among the parties relating to the subject matter hereof and expressly supersedes any prior agreements between the parties relating to the subject matter hereof. This Agreement shall not be terminated, amended or modified without the prior written consent of the Bank’s President and Chief Executive Officer and Employee. No failure or delay by a Banking Organization in exercising any right or remedy under this Agreement shall operate as a waiver thereof, nor shall any waiver by a Banking Organization under this Agreement operate or be construed as a continuing waiver or a waiver of any subsequent breach or noncompliance hereunder. No single or partial exercise of any right or remedy by a Banking Organization shall preclude any other or further exercise thereof or the exercise of any other right or remedy. Any waiver by a Banking Organization under this Agreement shall be in writing and signed by the Bank’s President and Chief Executive Officer. A waiver shall operate only as to the specific term or condition waived and will not constitute a waiver for the future or act on anything other than that which is specifically waived.
14. “No-Defense” Provision. The covenants set forth in this Agreement are essential terms and conditions to a Banking Organization employing or continuing to employ Employee, and shall be construed as independent of any other obligations or agreements between Employee and a Banking Organization. The existence of any claim or cause of action Employee may have against a Banking Organization, including, but not limited to, the alleged material breach by a Banking Organization of any agreement with Employee, shall not constitute a defense to the enforcement by a Banking Organization of the covenants and obligations in this Agreement and shall not relieve Employee of his or her obligations under this Agreement.
15. Jurisdiction and Venue. The parties agree that all suits, actions, proceedings, litigation, disputes, or claims relating to or arising out of this Agreement shall be filed and tried in the Superior or Circuit Court, as appropriate, of Vigo County, Indiana, or the United States District Court for the Southern District of Indiana, Terre Haute Division. In this regard, the parties hereby: (a) agree that venue shall be such stated courts; (b) irrevocably consent to service of process and to the jurisdiction and venue of such courts; and (c) irrevocably waive any claim of inconvenient forum if any such suit, claim, proceeding, litigation, dispute, or claim has been filed, brought, or made in any of such courts.
16. Construction. This Agreement is the result of negotiations between the parties, and no party shall be deemed to be the drafter of this Agreement; accordingly, this Agreement shall be interpreted and construed without any presumption or inference based upon or against the party causing this Agreement to be prepared. The language of this Agreement shall in all cases be construed as a whole, according to its fair meaning and not strictly for or against any party.
17. Review and Consultation. Employee acknowledges and agrees that he/she has read this Agreement in its entirety prior to executing it, understands the provisions and effects of this Agreement, and has consulted with or had the opportunity to consult with an attorney or other advisers as he/she deemed appropriate in connection with the execution of this Agreement.
18. Section Headings. Section headings are inserted into this Agreement for convenience only and shall not affect any construction or interpretation of this Agreement.
19. Reasonableness. Employee agrees and acknowledges that the covenants, restrictions and obligations set forth in this Agreement, including Sections 5 and 6, are reasonable and necessary to protect a Banking Organization. Employee agrees that the covenants, restrictions and obligations will not affect Employee’s ability to make a living.
20. Counterparts. This Agreement may be executed in any number of identical counterparts, each of which shall be deemed a duplicate original but all of which shall constitute one and the same agreement. The parties agree that signatures transmitted by facsimile or other electronic means are acceptable the same as original signatures for the execution of the Agreement.
21. Miscellaneous. Any change in Employee’s duties, responsibilities, title, position, compensation, or status, with a Financial Institution will not affect the validity or enforceability of this Agreement.
22. Representations. Employee represents and warrants that he/she is not a party to an agreement with his or her prior employer(s) (other than Heritage or HopFed) or any other Person that prohibits Solicitation of business or competing with that employer or other Person. Employee affirms and represents that performance of his/her job duties and responsibilities for a Financial Institution does not, and will not, breach any agreement or covenant not to Solicit business, compete in business, or keep in confidence proprietary or confidential information acquired in confidence or in trust prior to Employee’s employment with a Financial Institution. Employee further represents that he/she has not retained any documents or information relating to Employee’s prior employers (other than Heritage or HopFed) that may be considered confidential or proprietary information and that Employee has not disclosed or used, and will not disclose or use, any information relating to his or her prior employer(s) in connection with Employee’s employment with a Financial Institution.
23. Return of Property. Upon termination of Employee’s employment, Employee shall immediately return to the Bank (if subsequent to the Effective Time) or Heritage (if prior to the Effective Time), all Banking Organizations documents and property, including, but not limited to, Confidential Information, computer discs, manuals, reports, files, memoranda, records, door and file keys, passwords and access codes, and any other physical or tangible things that Employee received, prepared, or helped prepare in connection with the Employee’s employment, and Employee shall not retain any copies, duplicates, reproductions or excerpts thereof. At the Bank’s or Heritage’s request, Employee shall provide written verification under the penalties for perjury of his/her compliance with this covenant.
24. Survival. Except as set forth below, the covenants in Sections 4, 5, 6 and 23 shall survive the termination of Employee’s employment with a Financial Institution regardless of the reason for termination. If the Merger is not consummated and the Merger Agreement is terminated, Sections 4, 5, 6 and 23 shall survive with respect to First Financial and the Bank, but shall not survive with respect to HopFed or Heritage.
[Signature Page to Follow]
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date indicated below.
FIRST FINANCIAL CORPORATION
By: /s/ Norman L. Lowery Date: January 7, 2019
Printed Name: Norman L. Lowery
Title: President & CEO
FIRST FINANCIAL BANK, N.A.
By: /s/ Norman L. Lowery Date: January 7, 2019
Printed Name: Norman L. Lowery
Title: President & CEO
HOPFED BANCORP, INC.
By: /s/ John E. Peck Date: January 7, 2019
Printed Name: John E. Peck
Title: President/CEO
HERITAGE BANK USA, INC.
By: /s/ John E. Peck Date: January 7, 2019
Printed Name: John E. Peck
Title: President/CEO
EMPLOYEE
Printed Name: Billy C. Duvall Date: January 7, 2019
Signature: /s/ Billy C. Duvall
| Entailment |
548_nda-12 | 548_nda-12_0 | Q: Receiving Party may independently develop information similar to Confidential Information.
Text: Exhibit 10.8
NON-DISCLOSURE AND NON-SOLICITATION AGREEMENT
THIS NON-DISCLOSURE AND NON-SOLICITATION AGREEMENT (“Agreement”) is made and entered into, effective as of the date first written below, by and among First Financial Corporation (“First Financial”), First Financial Bank, N.A. (“Bank”), a wholly-owned subsidiary of First Financial, HopFed Bancorp, Inc. (“HopFed”), Heritage Bank USA, Inc., (“Heritage”), a wholly-owned subsidiary of HopFed, and Billy C. Duvall (“Employee”). “Banking Organization” shall mean First Financial, the Bank, HopFed, and/or Heritage. “Financial Institution” shall mean the Bank and/or Heritage. First Financial, the Bank, HopFed, Heritage and Employee may be collectively referenced as the “parties” or individually as a “party.”
WHEREAS, pursuant to that certain Agreement and Plan of Merger, dated January 7, 2019, by and between HopFed and First Financial (the “Merger Agreement”), HopFed shall be merged with and into First Financial (the “Merger”) effective as of the date and time provided in the Merger Agreement (the “Effective Time”); and
WHEREAS, Heritage will be merged into the Bank at the Effective Time or shortly thereafter; and
WHEREAS, Employee is currently an employee of Heritage and the Bank intends to offer employment to the Employee as an at-will employee to provide services for and on behalf of the Bank immediately upon the Effective Time;
WHEREAS, as a result of employment with Heritage up to the Effective Time and with the Bank thereafter, Employee had, has and will have access to Confidential Information (as defined below) and may have acquired or will acquire knowledge regarding Confidential Information, including, but not limited to, information regarding Customers or Potential Customers (as defined below), and a Banking Organization could be harmed if such Confidential Information were to be used, divulged or become known to any competitor of a Banking Organization or to any other Person (as defined below) or to any entity outside of a Banking Organization;
WHEREAS, Employee has developed or may develop contacts and business relationships with Customers or Potential Customers which could be used to the detriment of a Banking Organization and/or to solicit employees away from a Banking Organization; and
WHEREAS, each Banking Organization desires reasonable protection of its respective confidential business and customer information which such Banking Organization has developed and will develop over the years at substantial expense.
NOW, THEREFORE, the parties incorporate the above recitals, and in consideration of the mutual promises, covenants and agreements made herein, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Consideration/At-Will Employment.
a. This Agreement neither constitutes an employment contract or agreement to Employee for a stated period of time, nor does it alter Employee’s existing employment status.
b. In consideration of Employee’s promises, covenants and agreements set forth in this Agreement, (i) as of the date of this Agreement and up to the Effective Time Heritage shall maintain Employee’s employment with the compensation and benefits commensurate therewith, and (ii) effective as of the Effective Time, the Bank shall offer or maintain Employee’s employment as an at-will employee with the compensation and benefits commensurate therewith. For avoidance of doubt, following the Effective Time, Bank or Employee can terminate the employment at any time, with or without cause, and with or without prior notice. Employee understands and agrees, upon the Effective Time, that he/she will be an at-will employee of Bank and that this Agreement does not change or affect Employee’s employee-at-will status.
2. Duties. Employee shall devote his/her full working time and attention to the performance of those services for the Banking Organization which are assigned to him/her from time to time and to perform such services in a faithful, honest and diligent manner and in the best interest of such Banking Organization.
3. Definitions of Key Terms.
a. “Banking and Financial Services” shall mean those banking and related financial services of a Banking Organization or subsidiary thereof, including but not limited to, checking and savings accounts, health savings accounts, money market accounts, loans, credit cards, cash management services, lines of credit, investment services (such as IRAs, college savings plans, estate planning, investment planning, business planning), and trust services, provided during any period in which Employee served or will serve in any capacity for a Financial Institution and all banking and related financial services substantially similar to such banking and related financial services.
b. “Confidential Information” shall mean any and all materials, records, data, documents, lists, writings, and information (whether in writing, printed, electronically stored, computerized, on disk or otherwise, including, but not limited to, all copies, summaries, analyses, drafts, and extracts) relating or referring in any manner to trade secrets (as currently defined under applicable law, including, but not limited to, the Indiana Uniform Trade Secrets Act and any amendments or successor statutes) of a Banking Organization, as well as other non-public financial or proprietary information of a Banking Organization including, but not limited to, business reports, business plans, projections, income statements, profit and loss statements, business strategies and/or strategic plans, internal audits, sales information, sales techniques, business costs, product pricing, budgets, research and development, intellectual property, software and/or computer programs, marketing strategies or ideas, marketing plans or materials, business development plans or strategies, records or information relating to customers or account holders, customer lists, inventions, and processes, systems, methods, documentation or devices which are unique or proprietary to the business of or services or products of a Banking Organization. Confidential Information shall not include information that: (i) is or becomes readily or publicly available, not as a result of a violation of this Agreement or other obligation of confidence, directly or indirectly, of the disclosing party; (ii) is developed by other parties, including, but not limited to, subsequent employers of the Employee, independent of the knowledge or resources of the Employee based upon his or her prior access to a Banking Organization’s Confidential Information; (iii) is independently developed after the Employee’s termination of employment without reference to or use of the Confidential Information or materials based thereon; (iv) is based on the Employee’s personal experience, knowledge, enterprise and expertise in the delivery of Banking and Financial Services and which is general knowledge concerning the industry, not specific to a Banking Organization; or (v) is disclosed pursuant to the requirements of a court, administrative agency or other governmental agency.
c. “Customers” or “Customer” shall mean any Person to whom a Banking Organization rendered or provided Banking and Financial Services at any time during the one-year period prior to Employee’s termination of employment with a Financial Institution: (i) with whom Employee had any material contact (either directly or indirectly); (ii) which Employee managed, had responsibility for or regularly serviced while employed by the Financial Institution, provided, however, this shall not be construed to include supervising those who have such a relationship to the Customer; or, (iii) about which Employee obtained Confidential Information.
d. “Employees,” “Agents,” and “Independent Contractors” shall mean any and all persons employed or contracted by a Banking Organization or who were employed or contracted by a Banking Organization, as an employee, agent or independent contractor, within the six (6) month period prior to Employee’s termination of employment with either Financial Institution.
e. “Person” shall mean any individual, partnership, corporation, organization, bank, credit union, firm, association, limited liability company, trust, joint venture, company or other entity, body, agency or department thereof.
f. “Potential Customer” shall mean any Person that Employee directly solicited, targeted or specifically identified as a prospective or potential customer, or about which Employee obtained information on behalf of a Banking Organization for purposes of directly soliciting, targeting or specifically identifying as a prospective or potential customer, during the one (1) year period prior to Employee’s termination of employment with either Financial Institution.
g. “Solicit”, “Solicited” or “Solicitation” means any direct or indirect communication of any kind whatsoever, regardless of by whom initiated, inviting, advising, inducing, encouraging, enticing, or requesting either expressly or implicitly, any Person, in any manner, to take or refrain from taking action, provided, however, this definition does not include communications initiated by Customers or Potential Customers of their own initiative, without prompting or encouragement by Employee or anyone acting on Employee’s behalf.
4. Non-Disclosure of Confidential Information. During the course of Employee’s employment with a Financial Institution, Employee agrees that Employee has or will continue to become knowledgeable about, or come to be in possession of, Confidential Information. If such Confidential Information were to be divulged or become known to any competitor of a Banking Organization, or to any other Person outside of a Banking Organization, or if Employee were to consent to be employed by any competitor of a Banking Organization, or to engage in competition with a Banking Organization, such Banking Organization will be harmed. In addition, Employee has or may develop relationships with Customers or Potential Customers so that the Confidential Information could be used to Solicit the business of such Customer or Potential Customer away from a Banking Organization.
Employee shall not, directly or indirectly, use any Confidential Information for any purpose other than the benefit of a Banking Organization, and shall not directly or indirectly, disclose, communicate, deliver, exhibit or provide any Confidential Information to any Person, except other Employees or Agents of a Banking Organization who have a need to know such Confidential Information for a proper corporate or business purpose, as required in the normal course of Employee’s service as an employee. Nothing in this Section 4, or any other provision of this Agreement, shall be construed to prohibit Employee from reporting conduct to, providing truthful information to, or participating in any investigation or proceeding brought or conducted by any federal or state government agency or self-regulatory organization.
Employee specifically acknowledges that the Confidential Information, whether reduced to writing or maintained electronically or in the mind or memory of Employee and, whether compiled by a Banking Organization and/or the Employee, derives independent economic value from not being readily known to or ascertainable by proper means by others who can obtain economic value from its disclosure or use, that reasonable efforts have been put forth by each Banking Organization to maintain the secrecy of such information, that such information is the sole property of such Banking Organization and that any retention and/or use of such information during or after Employee’s employment with either Financial Institution (except in the course of performing the Employee’s duties of employment with a Financial Institution and except as otherwise set forth above) constitutes a misappropriation of a Banking Organization’s Confidential Information.
Employee agrees that all Confidential Information and all records, documents and materials relating to all Confidential Information (including all copies thereof) shall be and remain the sole and exclusive property of a Banking Organization, and upon Employee’s termination of employment, all such Confidential Information, whether in paper or electronic form, shall be returned to a Financial Institution in good condition, without Employee retaining a copy thereof, including, but not limited to, retaining an electronic copy on any electronic device regardless of whether such device is owned by Employee. At a Financial Institution’s request, Employee shall provide written verification, under the penalties for perjury, of his/her compliance with this covenant.
5. Non-Solicitation of Customers and Potential Customers. Employee acknowledges and agrees that by virtue of Employee’s position with a Banking Organization, Employee has or will have advantageous familiarity and personal contacts with Customers and Potential Customers and will have advantageous familiarity with the business operations and affairs of a Banking Organization. Employee further acknowledges and agrees that Employee has been or will be placed in a position that, were Employee to leave a Financial Institution to compete with the business of a Banking Organization, such entity from which the Employee departed would, upon violation of this Agreement, suffer irreparable harm and financial loss, as well as lost goodwill and Confidential Information. Therefore, in consideration of the covenants of all Financial Institutions contained herein, Employee agrees that during Employee’s employment with a Financial Institution, and for a period of one (1) year immediately following the termination of Employee’s employment with a Financial Institution (“Restriction Period”), for whatever reason and regardless of how Employee’s employment was terminated, Employee shall not, directly or indirectly (including, but not limited to, through other individuals, any partnership, corporation or business entity in which Employee has an ownership interest or serves as an officer, employee, independent contractor, representative, agent or consultant), either for Employee’s own benefit or the benefit of any other Person:
a. Solicit, divert, or take away (or attempt to Solicit, divert or take away) any Banking and Financial Services to or from any Customer or Potential Customer; or
b. advise, persuade or induce (or attempt to advise, persuade or induce) any Customer or Potential Customer to terminate, reduce, limit, or change the Customer’s services or business relationship, or the Potential Customer’s contemplated services or business relationship, with a Financial Institution; or
c. directly provide Banking and Financial Services to, or directly accept Banking and Financial Services from, any Customer or Potential Customer.
This Agreement is not intended to prevent Employee from accepting employment with an organization that competes with the Banking Organizations by offering Banking and Financial Services to Customers or Potential Customers. The Parties acknowledge that Employee may be associated with such an Organization and that such association may place Employee in a senior or supervisory role to those in the organization that have contact with Customers or Potential Customers. Employee shall not be in violation of this Agreement merely by engaging in such a role, which may include:
a. supervising those who provide Banking and Financial Services to Customers or Potential Customers;
b. engaging in credit review, underwriting, loan approval, or financial analysis of a Customer or Potential Customer’s business as a part of a supervisory or management role, so long as such activity does not require the disclosure of Confidential Information, direct contact with the Customer or Potential Customer, or the disclosure of Employee’s role to the Customer or Potential Customer;
c. performing or supervising those that perform data processing, accounting, rate review, document review or similar “back room” services related to a Customer or Potential Customer so long as the services do not require the disclosure of Confidential Information or contact with the Customer or Potential Customer.
6. Non-Solicitation of Employees and Others. In consideration of the covenants of all Financial Institutions contained herein, Employee agrees that during Employee’s employment with a Financial Institution, and for a period of two (2) years immediately following the termination of Employee’s employment with a Financial Institution, for whatever reason and regardless of how Employee’s employment was terminated, Employee shall not, directly or indirectly (including, but not limited to, through other individuals, any partnership, corporation or business entity in which Employee has an ownership interest or serves as an officer, employee, independent contractor, representative, agent or consultant), either for Employee’s own benefit or the benefit of any other Person:
c. Solicit, entice or persuade (or attempt to Solicit, entice or persuade) any Employee to terminate his or her employment with a Banking Organization, or offer or provide employment (whether such employment is with Employee or any other Person) either on a full-time or part-time, consulting or Independent Contractor basis; or
d. Solicit, entice or persuade (or attempt to Solicit, entice or persuade) any Independent Contractors or Agents to terminate their contract or relationship with a Banking Organization or discontinue providing services to a Banking Organization and/or Customers; or
e. Solicit, entice or persuade (or attempt to Solicit, entice or persuade) any suppliers, vendors or others who were supplying services or goods to a Banking Organization during the one year period prior to Employee’s termination, to terminate, reduce, limit or change their business or relationship with a Banking Organization.
7. Tolling of Covenants. Employee acknowledges that a Banking Organization is entitled to the full post-termination restrictions on the activities set forth in Sections 5 and 6, as applicable. Therefore, in the event any of the provisions of these Sections are breached by Employee, the commencement of the applicable post-termination restriction will not begin until Employee is in full compliance with Section 5 and/or 6.
8. Severability/Blue Pencil. Each of the provisions of this Agreement, including, but not limited to, the restrictive covenants in Sections 5 and 6, are distinct and severable, notwithstanding that the covenants may be set forth in one section for convenience. If any provision of this Agreement shall be determined to be invalid, illegal or unenforceable in whole or in part, for any reason, neither the validity of the remaining part of such provision nor the validity of any other provision of this Agreement shall in any way be affected. Should any particular restrictive covenant, provision or clause of this Agreement be held unreasonable or unenforceable for any reason, including without limitation, the time period, geographic area and/or scope of activity covered by such covenant, provision or clause, the parties acknowledge and agree that such covenant, provision or clause shall be given effect and enforce to whatever extent would be
reasonable and enforceable under applicable law. The parties expressly authorize a court of competent jurisdiction to modify or revise such provision to limit the covenants to cover the maximum period of time, range of activities or other restrictions as would be enforceable under Indiana law.
9. Available Relief. Employee agrees that a Banking Organization, or its successor or assigns, will suffer irreparable damage and injury and will not have an adequate remedy at law in the event of any breach by Employee of any provision of Sections 4, 5 or 6, herein. Accordingly, in the event of a breach or of a threatened or attempted breach by Employee of Sections 4, 5, or 6, in addition to all other remedies to which a Banking Organization is entitled under law, in equity, or otherwise (including, but not limited to, monetary damages), a Banking Organization or its assigns and successors, shall be entitled to a temporary restraining order and/or preliminary or permanent injunction (without the necessity of showing any actual damage) or a decree of specific performance and no bond or other security shall be required in that connection.
10. Enforcement/Attorneys’ Fees. In any action that is brought to enforce or interpret this Agreement, the prevailing party or its assigns and successors, shall be entitled to recover their reasonable attorneys’ and paralegal fees and expenses incurred in connection therewith. If a Banking Organization or its assigns and successors, institute any action or proceeding to enforce the provisions of this Agreement, Employee hereby waives all claims or defenses that a Banking Organization or its assigns and successors, have an adequate remedy at law, and Employee shall not urge in any such action or proceeding the claim or defense that such a remedy at law exists.
11. Assignments; Successors and Assigns. The rights and obligations of Employee hereunder are not assignable or delegable by Employee, and any prohibited assignment or delegation will be null and void. The Banking Organization may, without the consent of the Employee, assign this Agreement to any successor or in connection with any merger, consolidation, share exchange, combination, sale of stock or assets or similar transaction. The provisions hereof shall inure to the benefit of and be binding upon the successors and assigns of a Banking Organization.
12. Governing Law. This Agreement shall be interpreted under, subject to and governed by the laws of the State of Indiana, without consideration of the choice of law principles thereof, and all questions concerning its validity, construction and administration shall be determined in accordance with Indiana law.
13. Entire Agreement/Modification/Waiver. This Agreement constitutes the entire agreement among the parties relating to the subject matter hereof and expressly supersedes any prior agreements between the parties relating to the subject matter hereof. This Agreement shall not be terminated, amended or modified without the prior written consent of the Bank’s President and Chief Executive Officer and Employee. No failure or delay by a Banking Organization in exercising any right or remedy under this Agreement shall operate as a waiver thereof, nor shall any waiver by a Banking Organization under this Agreement operate or be construed as a continuing waiver or a waiver of any subsequent breach or noncompliance hereunder. No single or partial exercise of any right or remedy by a Banking Organization shall preclude any other or further exercise thereof or the exercise of any other right or remedy. Any waiver by a Banking Organization under this Agreement shall be in writing and signed by the Bank’s President and Chief Executive Officer. A waiver shall operate only as to the specific term or condition waived and will not constitute a waiver for the future or act on anything other than that which is specifically waived.
14. “No-Defense” Provision. The covenants set forth in this Agreement are essential terms and conditions to a Banking Organization employing or continuing to employ Employee, and shall be construed as independent of any other obligations or agreements between Employee and a Banking Organization. The existence of any claim or cause of action Employee may have against a Banking Organization, including, but not limited to, the alleged material breach by a Banking Organization of any agreement with Employee, shall not constitute a defense to the enforcement by a Banking Organization of the covenants and obligations in this Agreement and shall not relieve Employee of his or her obligations under this Agreement.
15. Jurisdiction and Venue. The parties agree that all suits, actions, proceedings, litigation, disputes, or claims relating to or arising out of this Agreement shall be filed and tried in the Superior or Circuit Court, as appropriate, of Vigo County, Indiana, or the United States District Court for the Southern District of Indiana, Terre Haute Division. In this regard, the parties hereby: (a) agree that venue shall be such stated courts; (b) irrevocably consent to service of process and to the jurisdiction and venue of such courts; and (c) irrevocably waive any claim of inconvenient forum if any such suit, claim, proceeding, litigation, dispute, or claim has been filed, brought, or made in any of such courts.
16. Construction. This Agreement is the result of negotiations between the parties, and no party shall be deemed to be the drafter of this Agreement; accordingly, this Agreement shall be interpreted and construed without any presumption or inference based upon or against the party causing this Agreement to be prepared. The language of this Agreement shall in all cases be construed as a whole, according to its fair meaning and not strictly for or against any party.
17. Review and Consultation. Employee acknowledges and agrees that he/she has read this Agreement in its entirety prior to executing it, understands the provisions and effects of this Agreement, and has consulted with or had the opportunity to consult with an attorney or other advisers as he/she deemed appropriate in connection with the execution of this Agreement.
18. Section Headings. Section headings are inserted into this Agreement for convenience only and shall not affect any construction or interpretation of this Agreement.
19. Reasonableness. Employee agrees and acknowledges that the covenants, restrictions and obligations set forth in this Agreement, including Sections 5 and 6, are reasonable and necessary to protect a Banking Organization. Employee agrees that the covenants, restrictions and obligations will not affect Employee’s ability to make a living.
20. Counterparts. This Agreement may be executed in any number of identical counterparts, each of which shall be deemed a duplicate original but all of which shall constitute one and the same agreement. The parties agree that signatures transmitted by facsimile or other electronic means are acceptable the same as original signatures for the execution of the Agreement.
21. Miscellaneous. Any change in Employee’s duties, responsibilities, title, position, compensation, or status, with a Financial Institution will not affect the validity or enforceability of this Agreement.
22. Representations. Employee represents and warrants that he/she is not a party to an agreement with his or her prior employer(s) (other than Heritage or HopFed) or any other Person that prohibits Solicitation of business or competing with that employer or other Person. Employee affirms and represents that performance of his/her job duties and responsibilities for a Financial Institution does not, and will not, breach any agreement or covenant not to Solicit business, compete in business, or keep in confidence proprietary or confidential information acquired in confidence or in trust prior to Employee’s employment with a Financial Institution. Employee further represents that he/she has not retained any documents or information relating to Employee’s prior employers (other than Heritage or HopFed) that may be considered confidential or proprietary information and that Employee has not disclosed or used, and will not disclose or use, any information relating to his or her prior employer(s) in connection with Employee’s employment with a Financial Institution.
23. Return of Property. Upon termination of Employee’s employment, Employee shall immediately return to the Bank (if subsequent to the Effective Time) or Heritage (if prior to the Effective Time), all Banking Organizations documents and property, including, but not limited to, Confidential Information, computer discs, manuals, reports, files, memoranda, records, door and file keys, passwords and access codes, and any other physical or tangible things that Employee received, prepared, or helped prepare in connection with the Employee’s employment, and Employee shall not retain any copies, duplicates, reproductions or excerpts thereof. At the Bank’s or Heritage’s request, Employee shall provide written verification under the penalties for perjury of his/her compliance with this covenant.
24. Survival. Except as set forth below, the covenants in Sections 4, 5, 6 and 23 shall survive the termination of Employee’s employment with a Financial Institution regardless of the reason for termination. If the Merger is not consummated and the Merger Agreement is terminated, Sections 4, 5, 6 and 23 shall survive with respect to First Financial and the Bank, but shall not survive with respect to HopFed or Heritage.
[Signature Page to Follow]
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date indicated below.
FIRST FINANCIAL CORPORATION
By: /s/ Norman L. Lowery Date: January 7, 2019
Printed Name: Norman L. Lowery
Title: President & CEO
FIRST FINANCIAL BANK, N.A.
By: /s/ Norman L. Lowery Date: January 7, 2019
Printed Name: Norman L. Lowery
Title: President & CEO
HOPFED BANCORP, INC.
By: /s/ John E. Peck Date: January 7, 2019
Printed Name: John E. Peck
Title: President/CEO
HERITAGE BANK USA, INC.
By: /s/ John E. Peck Date: January 7, 2019
Printed Name: John E. Peck
Title: President/CEO
EMPLOYEE
Printed Name: Billy C. Duvall Date: January 7, 2019
Signature: /s/ Billy C. Duvall
| Not mentioned |
548_nda-20 | 548_nda-20_0 | Q: Receiving Party may retain some Confidential Information even after the return or destruction of Confidential Information.
Text: Exhibit 10.8
NON-DISCLOSURE AND NON-SOLICITATION AGREEMENT
THIS NON-DISCLOSURE AND NON-SOLICITATION AGREEMENT (“Agreement”) is made and entered into, effective as of the date first written below, by and among First Financial Corporation (“First Financial”), First Financial Bank, N.A. (“Bank”), a wholly-owned subsidiary of First Financial, HopFed Bancorp, Inc. (“HopFed”), Heritage Bank USA, Inc., (“Heritage”), a wholly-owned subsidiary of HopFed, and Billy C. Duvall (“Employee”). “Banking Organization” shall mean First Financial, the Bank, HopFed, and/or Heritage. “Financial Institution” shall mean the Bank and/or Heritage. First Financial, the Bank, HopFed, Heritage and Employee may be collectively referenced as the “parties” or individually as a “party.”
WHEREAS, pursuant to that certain Agreement and Plan of Merger, dated January 7, 2019, by and between HopFed and First Financial (the “Merger Agreement”), HopFed shall be merged with and into First Financial (the “Merger”) effective as of the date and time provided in the Merger Agreement (the “Effective Time”); and
WHEREAS, Heritage will be merged into the Bank at the Effective Time or shortly thereafter; and
WHEREAS, Employee is currently an employee of Heritage and the Bank intends to offer employment to the Employee as an at-will employee to provide services for and on behalf of the Bank immediately upon the Effective Time;
WHEREAS, as a result of employment with Heritage up to the Effective Time and with the Bank thereafter, Employee had, has and will have access to Confidential Information (as defined below) and may have acquired or will acquire knowledge regarding Confidential Information, including, but not limited to, information regarding Customers or Potential Customers (as defined below), and a Banking Organization could be harmed if such Confidential Information were to be used, divulged or become known to any competitor of a Banking Organization or to any other Person (as defined below) or to any entity outside of a Banking Organization;
WHEREAS, Employee has developed or may develop contacts and business relationships with Customers or Potential Customers which could be used to the detriment of a Banking Organization and/or to solicit employees away from a Banking Organization; and
WHEREAS, each Banking Organization desires reasonable protection of its respective confidential business and customer information which such Banking Organization has developed and will develop over the years at substantial expense.
NOW, THEREFORE, the parties incorporate the above recitals, and in consideration of the mutual promises, covenants and agreements made herein, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Consideration/At-Will Employment.
a. This Agreement neither constitutes an employment contract or agreement to Employee for a stated period of time, nor does it alter Employee’s existing employment status.
b. In consideration of Employee’s promises, covenants and agreements set forth in this Agreement, (i) as of the date of this Agreement and up to the Effective Time Heritage shall maintain Employee’s employment with the compensation and benefits commensurate therewith, and (ii) effective as of the Effective Time, the Bank shall offer or maintain Employee’s employment as an at-will employee with the compensation and benefits commensurate therewith. For avoidance of doubt, following the Effective Time, Bank or Employee can terminate the employment at any time, with or without cause, and with or without prior notice. Employee understands and agrees, upon the Effective Time, that he/she will be an at-will employee of Bank and that this Agreement does not change or affect Employee’s employee-at-will status.
2. Duties. Employee shall devote his/her full working time and attention to the performance of those services for the Banking Organization which are assigned to him/her from time to time and to perform such services in a faithful, honest and diligent manner and in the best interest of such Banking Organization.
3. Definitions of Key Terms.
a. “Banking and Financial Services” shall mean those banking and related financial services of a Banking Organization or subsidiary thereof, including but not limited to, checking and savings accounts, health savings accounts, money market accounts, loans, credit cards, cash management services, lines of credit, investment services (such as IRAs, college savings plans, estate planning, investment planning, business planning), and trust services, provided during any period in which Employee served or will serve in any capacity for a Financial Institution and all banking and related financial services substantially similar to such banking and related financial services.
b. “Confidential Information” shall mean any and all materials, records, data, documents, lists, writings, and information (whether in writing, printed, electronically stored, computerized, on disk or otherwise, including, but not limited to, all copies, summaries, analyses, drafts, and extracts) relating or referring in any manner to trade secrets (as currently defined under applicable law, including, but not limited to, the Indiana Uniform Trade Secrets Act and any amendments or successor statutes) of a Banking Organization, as well as other non-public financial or proprietary information of a Banking Organization including, but not limited to, business reports, business plans, projections, income statements, profit and loss statements, business strategies and/or strategic plans, internal audits, sales information, sales techniques, business costs, product pricing, budgets, research and development, intellectual property, software and/or computer programs, marketing strategies or ideas, marketing plans or materials, business development plans or strategies, records or information relating to customers or account holders, customer lists, inventions, and processes, systems, methods, documentation or devices which are unique or proprietary to the business of or services or products of a Banking Organization. Confidential Information shall not include information that: (i) is or becomes readily or publicly available, not as a result of a violation of this Agreement or other obligation of confidence, directly or indirectly, of the disclosing party; (ii) is developed by other parties, including, but not limited to, subsequent employers of the Employee, independent of the knowledge or resources of the Employee based upon his or her prior access to a Banking Organization’s Confidential Information; (iii) is independently developed after the Employee’s termination of employment without reference to or use of the Confidential Information or materials based thereon; (iv) is based on the Employee’s personal experience, knowledge, enterprise and expertise in the delivery of Banking and Financial Services and which is general knowledge concerning the industry, not specific to a Banking Organization; or (v) is disclosed pursuant to the requirements of a court, administrative agency or other governmental agency.
c. “Customers” or “Customer” shall mean any Person to whom a Banking Organization rendered or provided Banking and Financial Services at any time during the one-year period prior to Employee’s termination of employment with a Financial Institution: (i) with whom Employee had any material contact (either directly or indirectly); (ii) which Employee managed, had responsibility for or regularly serviced while employed by the Financial Institution, provided, however, this shall not be construed to include supervising those who have such a relationship to the Customer; or, (iii) about which Employee obtained Confidential Information.
d. “Employees,” “Agents,” and “Independent Contractors” shall mean any and all persons employed or contracted by a Banking Organization or who were employed or contracted by a Banking Organization, as an employee, agent or independent contractor, within the six (6) month period prior to Employee’s termination of employment with either Financial Institution.
e. “Person” shall mean any individual, partnership, corporation, organization, bank, credit union, firm, association, limited liability company, trust, joint venture, company or other entity, body, agency or department thereof.
f. “Potential Customer” shall mean any Person that Employee directly solicited, targeted or specifically identified as a prospective or potential customer, or about which Employee obtained information on behalf of a Banking Organization for purposes of directly soliciting, targeting or specifically identifying as a prospective or potential customer, during the one (1) year period prior to Employee’s termination of employment with either Financial Institution.
g. “Solicit”, “Solicited” or “Solicitation” means any direct or indirect communication of any kind whatsoever, regardless of by whom initiated, inviting, advising, inducing, encouraging, enticing, or requesting either expressly or implicitly, any Person, in any manner, to take or refrain from taking action, provided, however, this definition does not include communications initiated by Customers or Potential Customers of their own initiative, without prompting or encouragement by Employee or anyone acting on Employee’s behalf.
4. Non-Disclosure of Confidential Information. During the course of Employee’s employment with a Financial Institution, Employee agrees that Employee has or will continue to become knowledgeable about, or come to be in possession of, Confidential Information. If such Confidential Information were to be divulged or become known to any competitor of a Banking Organization, or to any other Person outside of a Banking Organization, or if Employee were to consent to be employed by any competitor of a Banking Organization, or to engage in competition with a Banking Organization, such Banking Organization will be harmed. In addition, Employee has or may develop relationships with Customers or Potential Customers so that the Confidential Information could be used to Solicit the business of such Customer or Potential Customer away from a Banking Organization.
Employee shall not, directly or indirectly, use any Confidential Information for any purpose other than the benefit of a Banking Organization, and shall not directly or indirectly, disclose, communicate, deliver, exhibit or provide any Confidential Information to any Person, except other Employees or Agents of a Banking Organization who have a need to know such Confidential Information for a proper corporate or business purpose, as required in the normal course of Employee’s service as an employee. Nothing in this Section 4, or any other provision of this Agreement, shall be construed to prohibit Employee from reporting conduct to, providing truthful information to, or participating in any investigation or proceeding brought or conducted by any federal or state government agency or self-regulatory organization.
Employee specifically acknowledges that the Confidential Information, whether reduced to writing or maintained electronically or in the mind or memory of Employee and, whether compiled by a Banking Organization and/or the Employee, derives independent economic value from not being readily known to or ascertainable by proper means by others who can obtain economic value from its disclosure or use, that reasonable efforts have been put forth by each Banking Organization to maintain the secrecy of such information, that such information is the sole property of such Banking Organization and that any retention and/or use of such information during or after Employee’s employment with either Financial Institution (except in the course of performing the Employee’s duties of employment with a Financial Institution and except as otherwise set forth above) constitutes a misappropriation of a Banking Organization’s Confidential Information.
Employee agrees that all Confidential Information and all records, documents and materials relating to all Confidential Information (including all copies thereof) shall be and remain the sole and exclusive property of a Banking Organization, and upon Employee’s termination of employment, all such Confidential Information, whether in paper or electronic form, shall be returned to a Financial Institution in good condition, without Employee retaining a copy thereof, including, but not limited to, retaining an electronic copy on any electronic device regardless of whether such device is owned by Employee. At a Financial Institution’s request, Employee shall provide written verification, under the penalties for perjury, of his/her compliance with this covenant.
5. Non-Solicitation of Customers and Potential Customers. Employee acknowledges and agrees that by virtue of Employee’s position with a Banking Organization, Employee has or will have advantageous familiarity and personal contacts with Customers and Potential Customers and will have advantageous familiarity with the business operations and affairs of a Banking Organization. Employee further acknowledges and agrees that Employee has been or will be placed in a position that, were Employee to leave a Financial Institution to compete with the business of a Banking Organization, such entity from which the Employee departed would, upon violation of this Agreement, suffer irreparable harm and financial loss, as well as lost goodwill and Confidential Information. Therefore, in consideration of the covenants of all Financial Institutions contained herein, Employee agrees that during Employee’s employment with a Financial Institution, and for a period of one (1) year immediately following the termination of Employee’s employment with a Financial Institution (“Restriction Period”), for whatever reason and regardless of how Employee’s employment was terminated, Employee shall not, directly or indirectly (including, but not limited to, through other individuals, any partnership, corporation or business entity in which Employee has an ownership interest or serves as an officer, employee, independent contractor, representative, agent or consultant), either for Employee’s own benefit or the benefit of any other Person:
a. Solicit, divert, or take away (or attempt to Solicit, divert or take away) any Banking and Financial Services to or from any Customer or Potential Customer; or
b. advise, persuade or induce (or attempt to advise, persuade or induce) any Customer or Potential Customer to terminate, reduce, limit, or change the Customer’s services or business relationship, or the Potential Customer’s contemplated services or business relationship, with a Financial Institution; or
c. directly provide Banking and Financial Services to, or directly accept Banking and Financial Services from, any Customer or Potential Customer.
This Agreement is not intended to prevent Employee from accepting employment with an organization that competes with the Banking Organizations by offering Banking and Financial Services to Customers or Potential Customers. The Parties acknowledge that Employee may be associated with such an Organization and that such association may place Employee in a senior or supervisory role to those in the organization that have contact with Customers or Potential Customers. Employee shall not be in violation of this Agreement merely by engaging in such a role, which may include:
a. supervising those who provide Banking and Financial Services to Customers or Potential Customers;
b. engaging in credit review, underwriting, loan approval, or financial analysis of a Customer or Potential Customer’s business as a part of a supervisory or management role, so long as such activity does not require the disclosure of Confidential Information, direct contact with the Customer or Potential Customer, or the disclosure of Employee’s role to the Customer or Potential Customer;
c. performing or supervising those that perform data processing, accounting, rate review, document review or similar “back room” services related to a Customer or Potential Customer so long as the services do not require the disclosure of Confidential Information or contact with the Customer or Potential Customer.
6. Non-Solicitation of Employees and Others. In consideration of the covenants of all Financial Institutions contained herein, Employee agrees that during Employee’s employment with a Financial Institution, and for a period of two (2) years immediately following the termination of Employee’s employment with a Financial Institution, for whatever reason and regardless of how Employee’s employment was terminated, Employee shall not, directly or indirectly (including, but not limited to, through other individuals, any partnership, corporation or business entity in which Employee has an ownership interest or serves as an officer, employee, independent contractor, representative, agent or consultant), either for Employee’s own benefit or the benefit of any other Person:
c. Solicit, entice or persuade (or attempt to Solicit, entice or persuade) any Employee to terminate his or her employment with a Banking Organization, or offer or provide employment (whether such employment is with Employee or any other Person) either on a full-time or part-time, consulting or Independent Contractor basis; or
d. Solicit, entice or persuade (or attempt to Solicit, entice or persuade) any Independent Contractors or Agents to terminate their contract or relationship with a Banking Organization or discontinue providing services to a Banking Organization and/or Customers; or
e. Solicit, entice or persuade (or attempt to Solicit, entice or persuade) any suppliers, vendors or others who were supplying services or goods to a Banking Organization during the one year period prior to Employee’s termination, to terminate, reduce, limit or change their business or relationship with a Banking Organization.
7. Tolling of Covenants. Employee acknowledges that a Banking Organization is entitled to the full post-termination restrictions on the activities set forth in Sections 5 and 6, as applicable. Therefore, in the event any of the provisions of these Sections are breached by Employee, the commencement of the applicable post-termination restriction will not begin until Employee is in full compliance with Section 5 and/or 6.
8. Severability/Blue Pencil. Each of the provisions of this Agreement, including, but not limited to, the restrictive covenants in Sections 5 and 6, are distinct and severable, notwithstanding that the covenants may be set forth in one section for convenience. If any provision of this Agreement shall be determined to be invalid, illegal or unenforceable in whole or in part, for any reason, neither the validity of the remaining part of such provision nor the validity of any other provision of this Agreement shall in any way be affected. Should any particular restrictive covenant, provision or clause of this Agreement be held unreasonable or unenforceable for any reason, including without limitation, the time period, geographic area and/or scope of activity covered by such covenant, provision or clause, the parties acknowledge and agree that such covenant, provision or clause shall be given effect and enforce to whatever extent would be
reasonable and enforceable under applicable law. The parties expressly authorize a court of competent jurisdiction to modify or revise such provision to limit the covenants to cover the maximum period of time, range of activities or other restrictions as would be enforceable under Indiana law.
9. Available Relief. Employee agrees that a Banking Organization, or its successor or assigns, will suffer irreparable damage and injury and will not have an adequate remedy at law in the event of any breach by Employee of any provision of Sections 4, 5 or 6, herein. Accordingly, in the event of a breach or of a threatened or attempted breach by Employee of Sections 4, 5, or 6, in addition to all other remedies to which a Banking Organization is entitled under law, in equity, or otherwise (including, but not limited to, monetary damages), a Banking Organization or its assigns and successors, shall be entitled to a temporary restraining order and/or preliminary or permanent injunction (without the necessity of showing any actual damage) or a decree of specific performance and no bond or other security shall be required in that connection.
10. Enforcement/Attorneys’ Fees. In any action that is brought to enforce or interpret this Agreement, the prevailing party or its assigns and successors, shall be entitled to recover their reasonable attorneys’ and paralegal fees and expenses incurred in connection therewith. If a Banking Organization or its assigns and successors, institute any action or proceeding to enforce the provisions of this Agreement, Employee hereby waives all claims or defenses that a Banking Organization or its assigns and successors, have an adequate remedy at law, and Employee shall not urge in any such action or proceeding the claim or defense that such a remedy at law exists.
11. Assignments; Successors and Assigns. The rights and obligations of Employee hereunder are not assignable or delegable by Employee, and any prohibited assignment or delegation will be null and void. The Banking Organization may, without the consent of the Employee, assign this Agreement to any successor or in connection with any merger, consolidation, share exchange, combination, sale of stock or assets or similar transaction. The provisions hereof shall inure to the benefit of and be binding upon the successors and assigns of a Banking Organization.
12. Governing Law. This Agreement shall be interpreted under, subject to and governed by the laws of the State of Indiana, without consideration of the choice of law principles thereof, and all questions concerning its validity, construction and administration shall be determined in accordance with Indiana law.
13. Entire Agreement/Modification/Waiver. This Agreement constitutes the entire agreement among the parties relating to the subject matter hereof and expressly supersedes any prior agreements between the parties relating to the subject matter hereof. This Agreement shall not be terminated, amended or modified without the prior written consent of the Bank’s President and Chief Executive Officer and Employee. No failure or delay by a Banking Organization in exercising any right or remedy under this Agreement shall operate as a waiver thereof, nor shall any waiver by a Banking Organization under this Agreement operate or be construed as a continuing waiver or a waiver of any subsequent breach or noncompliance hereunder. No single or partial exercise of any right or remedy by a Banking Organization shall preclude any other or further exercise thereof or the exercise of any other right or remedy. Any waiver by a Banking Organization under this Agreement shall be in writing and signed by the Bank’s President and Chief Executive Officer. A waiver shall operate only as to the specific term or condition waived and will not constitute a waiver for the future or act on anything other than that which is specifically waived.
14. “No-Defense” Provision. The covenants set forth in this Agreement are essential terms and conditions to a Banking Organization employing or continuing to employ Employee, and shall be construed as independent of any other obligations or agreements between Employee and a Banking Organization. The existence of any claim or cause of action Employee may have against a Banking Organization, including, but not limited to, the alleged material breach by a Banking Organization of any agreement with Employee, shall not constitute a defense to the enforcement by a Banking Organization of the covenants and obligations in this Agreement and shall not relieve Employee of his or her obligations under this Agreement.
15. Jurisdiction and Venue. The parties agree that all suits, actions, proceedings, litigation, disputes, or claims relating to or arising out of this Agreement shall be filed and tried in the Superior or Circuit Court, as appropriate, of Vigo County, Indiana, or the United States District Court for the Southern District of Indiana, Terre Haute Division. In this regard, the parties hereby: (a) agree that venue shall be such stated courts; (b) irrevocably consent to service of process and to the jurisdiction and venue of such courts; and (c) irrevocably waive any claim of inconvenient forum if any such suit, claim, proceeding, litigation, dispute, or claim has been filed, brought, or made in any of such courts.
16. Construction. This Agreement is the result of negotiations between the parties, and no party shall be deemed to be the drafter of this Agreement; accordingly, this Agreement shall be interpreted and construed without any presumption or inference based upon or against the party causing this Agreement to be prepared. The language of this Agreement shall in all cases be construed as a whole, according to its fair meaning and not strictly for or against any party.
17. Review and Consultation. Employee acknowledges and agrees that he/she has read this Agreement in its entirety prior to executing it, understands the provisions and effects of this Agreement, and has consulted with or had the opportunity to consult with an attorney or other advisers as he/she deemed appropriate in connection with the execution of this Agreement.
18. Section Headings. Section headings are inserted into this Agreement for convenience only and shall not affect any construction or interpretation of this Agreement.
19. Reasonableness. Employee agrees and acknowledges that the covenants, restrictions and obligations set forth in this Agreement, including Sections 5 and 6, are reasonable and necessary to protect a Banking Organization. Employee agrees that the covenants, restrictions and obligations will not affect Employee’s ability to make a living.
20. Counterparts. This Agreement may be executed in any number of identical counterparts, each of which shall be deemed a duplicate original but all of which shall constitute one and the same agreement. The parties agree that signatures transmitted by facsimile or other electronic means are acceptable the same as original signatures for the execution of the Agreement.
21. Miscellaneous. Any change in Employee’s duties, responsibilities, title, position, compensation, or status, with a Financial Institution will not affect the validity or enforceability of this Agreement.
22. Representations. Employee represents and warrants that he/she is not a party to an agreement with his or her prior employer(s) (other than Heritage or HopFed) or any other Person that prohibits Solicitation of business or competing with that employer or other Person. Employee affirms and represents that performance of his/her job duties and responsibilities for a Financial Institution does not, and will not, breach any agreement or covenant not to Solicit business, compete in business, or keep in confidence proprietary or confidential information acquired in confidence or in trust prior to Employee’s employment with a Financial Institution. Employee further represents that he/she has not retained any documents or information relating to Employee’s prior employers (other than Heritage or HopFed) that may be considered confidential or proprietary information and that Employee has not disclosed or used, and will not disclose or use, any information relating to his or her prior employer(s) in connection with Employee’s employment with a Financial Institution.
23. Return of Property. Upon termination of Employee’s employment, Employee shall immediately return to the Bank (if subsequent to the Effective Time) or Heritage (if prior to the Effective Time), all Banking Organizations documents and property, including, but not limited to, Confidential Information, computer discs, manuals, reports, files, memoranda, records, door and file keys, passwords and access codes, and any other physical or tangible things that Employee received, prepared, or helped prepare in connection with the Employee’s employment, and Employee shall not retain any copies, duplicates, reproductions or excerpts thereof. At the Bank’s or Heritage’s request, Employee shall provide written verification under the penalties for perjury of his/her compliance with this covenant.
24. Survival. Except as set forth below, the covenants in Sections 4, 5, 6 and 23 shall survive the termination of Employee’s employment with a Financial Institution regardless of the reason for termination. If the Merger is not consummated and the Merger Agreement is terminated, Sections 4, 5, 6 and 23 shall survive with respect to First Financial and the Bank, but shall not survive with respect to HopFed or Heritage.
[Signature Page to Follow]
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date indicated below.
FIRST FINANCIAL CORPORATION
By: /s/ Norman L. Lowery Date: January 7, 2019
Printed Name: Norman L. Lowery
Title: President & CEO
FIRST FINANCIAL BANK, N.A.
By: /s/ Norman L. Lowery Date: January 7, 2019
Printed Name: Norman L. Lowery
Title: President & CEO
HOPFED BANCORP, INC.
By: /s/ John E. Peck Date: January 7, 2019
Printed Name: John E. Peck
Title: President/CEO
HERITAGE BANK USA, INC.
By: /s/ John E. Peck Date: January 7, 2019
Printed Name: John E. Peck
Title: President/CEO
EMPLOYEE
Printed Name: Billy C. Duvall Date: January 7, 2019
Signature: /s/ Billy C. Duvall
| Contradiction |
548_nda-3 | 548_nda-3_0 | Q: Confidential Information may include verbally conveyed information.
Text: Exhibit 10.8
NON-DISCLOSURE AND NON-SOLICITATION AGREEMENT
THIS NON-DISCLOSURE AND NON-SOLICITATION AGREEMENT (“Agreement”) is made and entered into, effective as of the date first written below, by and among First Financial Corporation (“First Financial”), First Financial Bank, N.A. (“Bank”), a wholly-owned subsidiary of First Financial, HopFed Bancorp, Inc. (“HopFed”), Heritage Bank USA, Inc., (“Heritage”), a wholly-owned subsidiary of HopFed, and Billy C. Duvall (“Employee”). “Banking Organization” shall mean First Financial, the Bank, HopFed, and/or Heritage. “Financial Institution” shall mean the Bank and/or Heritage. First Financial, the Bank, HopFed, Heritage and Employee may be collectively referenced as the “parties” or individually as a “party.”
WHEREAS, pursuant to that certain Agreement and Plan of Merger, dated January 7, 2019, by and between HopFed and First Financial (the “Merger Agreement”), HopFed shall be merged with and into First Financial (the “Merger”) effective as of the date and time provided in the Merger Agreement (the “Effective Time”); and
WHEREAS, Heritage will be merged into the Bank at the Effective Time or shortly thereafter; and
WHEREAS, Employee is currently an employee of Heritage and the Bank intends to offer employment to the Employee as an at-will employee to provide services for and on behalf of the Bank immediately upon the Effective Time;
WHEREAS, as a result of employment with Heritage up to the Effective Time and with the Bank thereafter, Employee had, has and will have access to Confidential Information (as defined below) and may have acquired or will acquire knowledge regarding Confidential Information, including, but not limited to, information regarding Customers or Potential Customers (as defined below), and a Banking Organization could be harmed if such Confidential Information were to be used, divulged or become known to any competitor of a Banking Organization or to any other Person (as defined below) or to any entity outside of a Banking Organization;
WHEREAS, Employee has developed or may develop contacts and business relationships with Customers or Potential Customers which could be used to the detriment of a Banking Organization and/or to solicit employees away from a Banking Organization; and
WHEREAS, each Banking Organization desires reasonable protection of its respective confidential business and customer information which such Banking Organization has developed and will develop over the years at substantial expense.
NOW, THEREFORE, the parties incorporate the above recitals, and in consideration of the mutual promises, covenants and agreements made herein, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Consideration/At-Will Employment.
a. This Agreement neither constitutes an employment contract or agreement to Employee for a stated period of time, nor does it alter Employee’s existing employment status.
b. In consideration of Employee’s promises, covenants and agreements set forth in this Agreement, (i) as of the date of this Agreement and up to the Effective Time Heritage shall maintain Employee’s employment with the compensation and benefits commensurate therewith, and (ii) effective as of the Effective Time, the Bank shall offer or maintain Employee’s employment as an at-will employee with the compensation and benefits commensurate therewith. For avoidance of doubt, following the Effective Time, Bank or Employee can terminate the employment at any time, with or without cause, and with or without prior notice. Employee understands and agrees, upon the Effective Time, that he/she will be an at-will employee of Bank and that this Agreement does not change or affect Employee’s employee-at-will status.
2. Duties. Employee shall devote his/her full working time and attention to the performance of those services for the Banking Organization which are assigned to him/her from time to time and to perform such services in a faithful, honest and diligent manner and in the best interest of such Banking Organization.
3. Definitions of Key Terms.
a. “Banking and Financial Services” shall mean those banking and related financial services of a Banking Organization or subsidiary thereof, including but not limited to, checking and savings accounts, health savings accounts, money market accounts, loans, credit cards, cash management services, lines of credit, investment services (such as IRAs, college savings plans, estate planning, investment planning, business planning), and trust services, provided during any period in which Employee served or will serve in any capacity for a Financial Institution and all banking and related financial services substantially similar to such banking and related financial services.
b. “Confidential Information” shall mean any and all materials, records, data, documents, lists, writings, and information (whether in writing, printed, electronically stored, computerized, on disk or otherwise, including, but not limited to, all copies, summaries, analyses, drafts, and extracts) relating or referring in any manner to trade secrets (as currently defined under applicable law, including, but not limited to, the Indiana Uniform Trade Secrets Act and any amendments or successor statutes) of a Banking Organization, as well as other non-public financial or proprietary information of a Banking Organization including, but not limited to, business reports, business plans, projections, income statements, profit and loss statements, business strategies and/or strategic plans, internal audits, sales information, sales techniques, business costs, product pricing, budgets, research and development, intellectual property, software and/or computer programs, marketing strategies or ideas, marketing plans or materials, business development plans or strategies, records or information relating to customers or account holders, customer lists, inventions, and processes, systems, methods, documentation or devices which are unique or proprietary to the business of or services or products of a Banking Organization. Confidential Information shall not include information that: (i) is or becomes readily or publicly available, not as a result of a violation of this Agreement or other obligation of confidence, directly or indirectly, of the disclosing party; (ii) is developed by other parties, including, but not limited to, subsequent employers of the Employee, independent of the knowledge or resources of the Employee based upon his or her prior access to a Banking Organization’s Confidential Information; (iii) is independently developed after the Employee’s termination of employment without reference to or use of the Confidential Information or materials based thereon; (iv) is based on the Employee’s personal experience, knowledge, enterprise and expertise in the delivery of Banking and Financial Services and which is general knowledge concerning the industry, not specific to a Banking Organization; or (v) is disclosed pursuant to the requirements of a court, administrative agency or other governmental agency.
c. “Customers” or “Customer” shall mean any Person to whom a Banking Organization rendered or provided Banking and Financial Services at any time during the one-year period prior to Employee’s termination of employment with a Financial Institution: (i) with whom Employee had any material contact (either directly or indirectly); (ii) which Employee managed, had responsibility for or regularly serviced while employed by the Financial Institution, provided, however, this shall not be construed to include supervising those who have such a relationship to the Customer; or, (iii) about which Employee obtained Confidential Information.
d. “Employees,” “Agents,” and “Independent Contractors” shall mean any and all persons employed or contracted by a Banking Organization or who were employed or contracted by a Banking Organization, as an employee, agent or independent contractor, within the six (6) month period prior to Employee’s termination of employment with either Financial Institution.
e. “Person” shall mean any individual, partnership, corporation, organization, bank, credit union, firm, association, limited liability company, trust, joint venture, company or other entity, body, agency or department thereof.
f. “Potential Customer” shall mean any Person that Employee directly solicited, targeted or specifically identified as a prospective or potential customer, or about which Employee obtained information on behalf of a Banking Organization for purposes of directly soliciting, targeting or specifically identifying as a prospective or potential customer, during the one (1) year period prior to Employee’s termination of employment with either Financial Institution.
g. “Solicit”, “Solicited” or “Solicitation” means any direct or indirect communication of any kind whatsoever, regardless of by whom initiated, inviting, advising, inducing, encouraging, enticing, or requesting either expressly or implicitly, any Person, in any manner, to take or refrain from taking action, provided, however, this definition does not include communications initiated by Customers or Potential Customers of their own initiative, without prompting or encouragement by Employee or anyone acting on Employee’s behalf.
4. Non-Disclosure of Confidential Information. During the course of Employee’s employment with a Financial Institution, Employee agrees that Employee has or will continue to become knowledgeable about, or come to be in possession of, Confidential Information. If such Confidential Information were to be divulged or become known to any competitor of a Banking Organization, or to any other Person outside of a Banking Organization, or if Employee were to consent to be employed by any competitor of a Banking Organization, or to engage in competition with a Banking Organization, such Banking Organization will be harmed. In addition, Employee has or may develop relationships with Customers or Potential Customers so that the Confidential Information could be used to Solicit the business of such Customer or Potential Customer away from a Banking Organization.
Employee shall not, directly or indirectly, use any Confidential Information for any purpose other than the benefit of a Banking Organization, and shall not directly or indirectly, disclose, communicate, deliver, exhibit or provide any Confidential Information to any Person, except other Employees or Agents of a Banking Organization who have a need to know such Confidential Information for a proper corporate or business purpose, as required in the normal course of Employee’s service as an employee. Nothing in this Section 4, or any other provision of this Agreement, shall be construed to prohibit Employee from reporting conduct to, providing truthful information to, or participating in any investigation or proceeding brought or conducted by any federal or state government agency or self-regulatory organization.
Employee specifically acknowledges that the Confidential Information, whether reduced to writing or maintained electronically or in the mind or memory of Employee and, whether compiled by a Banking Organization and/or the Employee, derives independent economic value from not being readily known to or ascertainable by proper means by others who can obtain economic value from its disclosure or use, that reasonable efforts have been put forth by each Banking Organization to maintain the secrecy of such information, that such information is the sole property of such Banking Organization and that any retention and/or use of such information during or after Employee’s employment with either Financial Institution (except in the course of performing the Employee’s duties of employment with a Financial Institution and except as otherwise set forth above) constitutes a misappropriation of a Banking Organization’s Confidential Information.
Employee agrees that all Confidential Information and all records, documents and materials relating to all Confidential Information (including all copies thereof) shall be and remain the sole and exclusive property of a Banking Organization, and upon Employee’s termination of employment, all such Confidential Information, whether in paper or electronic form, shall be returned to a Financial Institution in good condition, without Employee retaining a copy thereof, including, but not limited to, retaining an electronic copy on any electronic device regardless of whether such device is owned by Employee. At a Financial Institution’s request, Employee shall provide written verification, under the penalties for perjury, of his/her compliance with this covenant.
5. Non-Solicitation of Customers and Potential Customers. Employee acknowledges and agrees that by virtue of Employee’s position with a Banking Organization, Employee has or will have advantageous familiarity and personal contacts with Customers and Potential Customers and will have advantageous familiarity with the business operations and affairs of a Banking Organization. Employee further acknowledges and agrees that Employee has been or will be placed in a position that, were Employee to leave a Financial Institution to compete with the business of a Banking Organization, such entity from which the Employee departed would, upon violation of this Agreement, suffer irreparable harm and financial loss, as well as lost goodwill and Confidential Information. Therefore, in consideration of the covenants of all Financial Institutions contained herein, Employee agrees that during Employee’s employment with a Financial Institution, and for a period of one (1) year immediately following the termination of Employee’s employment with a Financial Institution (“Restriction Period”), for whatever reason and regardless of how Employee’s employment was terminated, Employee shall not, directly or indirectly (including, but not limited to, through other individuals, any partnership, corporation or business entity in which Employee has an ownership interest or serves as an officer, employee, independent contractor, representative, agent or consultant), either for Employee’s own benefit or the benefit of any other Person:
a. Solicit, divert, or take away (or attempt to Solicit, divert or take away) any Banking and Financial Services to or from any Customer or Potential Customer; or
b. advise, persuade or induce (or attempt to advise, persuade or induce) any Customer or Potential Customer to terminate, reduce, limit, or change the Customer’s services or business relationship, or the Potential Customer’s contemplated services or business relationship, with a Financial Institution; or
c. directly provide Banking and Financial Services to, or directly accept Banking and Financial Services from, any Customer or Potential Customer.
This Agreement is not intended to prevent Employee from accepting employment with an organization that competes with the Banking Organizations by offering Banking and Financial Services to Customers or Potential Customers. The Parties acknowledge that Employee may be associated with such an Organization and that such association may place Employee in a senior or supervisory role to those in the organization that have contact with Customers or Potential Customers. Employee shall not be in violation of this Agreement merely by engaging in such a role, which may include:
a. supervising those who provide Banking and Financial Services to Customers or Potential Customers;
b. engaging in credit review, underwriting, loan approval, or financial analysis of a Customer or Potential Customer’s business as a part of a supervisory or management role, so long as such activity does not require the disclosure of Confidential Information, direct contact with the Customer or Potential Customer, or the disclosure of Employee’s role to the Customer or Potential Customer;
c. performing or supervising those that perform data processing, accounting, rate review, document review or similar “back room” services related to a Customer or Potential Customer so long as the services do not require the disclosure of Confidential Information or contact with the Customer or Potential Customer.
6. Non-Solicitation of Employees and Others. In consideration of the covenants of all Financial Institutions contained herein, Employee agrees that during Employee’s employment with a Financial Institution, and for a period of two (2) years immediately following the termination of Employee’s employment with a Financial Institution, for whatever reason and regardless of how Employee’s employment was terminated, Employee shall not, directly or indirectly (including, but not limited to, through other individuals, any partnership, corporation or business entity in which Employee has an ownership interest or serves as an officer, employee, independent contractor, representative, agent or consultant), either for Employee’s own benefit or the benefit of any other Person:
c. Solicit, entice or persuade (or attempt to Solicit, entice or persuade) any Employee to terminate his or her employment with a Banking Organization, or offer or provide employment (whether such employment is with Employee or any other Person) either on a full-time or part-time, consulting or Independent Contractor basis; or
d. Solicit, entice or persuade (or attempt to Solicit, entice or persuade) any Independent Contractors or Agents to terminate their contract or relationship with a Banking Organization or discontinue providing services to a Banking Organization and/or Customers; or
e. Solicit, entice or persuade (or attempt to Solicit, entice or persuade) any suppliers, vendors or others who were supplying services or goods to a Banking Organization during the one year period prior to Employee’s termination, to terminate, reduce, limit or change their business or relationship with a Banking Organization.
7. Tolling of Covenants. Employee acknowledges that a Banking Organization is entitled to the full post-termination restrictions on the activities set forth in Sections 5 and 6, as applicable. Therefore, in the event any of the provisions of these Sections are breached by Employee, the commencement of the applicable post-termination restriction will not begin until Employee is in full compliance with Section 5 and/or 6.
8. Severability/Blue Pencil. Each of the provisions of this Agreement, including, but not limited to, the restrictive covenants in Sections 5 and 6, are distinct and severable, notwithstanding that the covenants may be set forth in one section for convenience. If any provision of this Agreement shall be determined to be invalid, illegal or unenforceable in whole or in part, for any reason, neither the validity of the remaining part of such provision nor the validity of any other provision of this Agreement shall in any way be affected. Should any particular restrictive covenant, provision or clause of this Agreement be held unreasonable or unenforceable for any reason, including without limitation, the time period, geographic area and/or scope of activity covered by such covenant, provision or clause, the parties acknowledge and agree that such covenant, provision or clause shall be given effect and enforce to whatever extent would be
reasonable and enforceable under applicable law. The parties expressly authorize a court of competent jurisdiction to modify or revise such provision to limit the covenants to cover the maximum period of time, range of activities or other restrictions as would be enforceable under Indiana law.
9. Available Relief. Employee agrees that a Banking Organization, or its successor or assigns, will suffer irreparable damage and injury and will not have an adequate remedy at law in the event of any breach by Employee of any provision of Sections 4, 5 or 6, herein. Accordingly, in the event of a breach or of a threatened or attempted breach by Employee of Sections 4, 5, or 6, in addition to all other remedies to which a Banking Organization is entitled under law, in equity, or otherwise (including, but not limited to, monetary damages), a Banking Organization or its assigns and successors, shall be entitled to a temporary restraining order and/or preliminary or permanent injunction (without the necessity of showing any actual damage) or a decree of specific performance and no bond or other security shall be required in that connection.
10. Enforcement/Attorneys’ Fees. In any action that is brought to enforce or interpret this Agreement, the prevailing party or its assigns and successors, shall be entitled to recover their reasonable attorneys’ and paralegal fees and expenses incurred in connection therewith. If a Banking Organization or its assigns and successors, institute any action or proceeding to enforce the provisions of this Agreement, Employee hereby waives all claims or defenses that a Banking Organization or its assigns and successors, have an adequate remedy at law, and Employee shall not urge in any such action or proceeding the claim or defense that such a remedy at law exists.
11. Assignments; Successors and Assigns. The rights and obligations of Employee hereunder are not assignable or delegable by Employee, and any prohibited assignment or delegation will be null and void. The Banking Organization may, without the consent of the Employee, assign this Agreement to any successor or in connection with any merger, consolidation, share exchange, combination, sale of stock or assets or similar transaction. The provisions hereof shall inure to the benefit of and be binding upon the successors and assigns of a Banking Organization.
12. Governing Law. This Agreement shall be interpreted under, subject to and governed by the laws of the State of Indiana, without consideration of the choice of law principles thereof, and all questions concerning its validity, construction and administration shall be determined in accordance with Indiana law.
13. Entire Agreement/Modification/Waiver. This Agreement constitutes the entire agreement among the parties relating to the subject matter hereof and expressly supersedes any prior agreements between the parties relating to the subject matter hereof. This Agreement shall not be terminated, amended or modified without the prior written consent of the Bank’s President and Chief Executive Officer and Employee. No failure or delay by a Banking Organization in exercising any right or remedy under this Agreement shall operate as a waiver thereof, nor shall any waiver by a Banking Organization under this Agreement operate or be construed as a continuing waiver or a waiver of any subsequent breach or noncompliance hereunder. No single or partial exercise of any right or remedy by a Banking Organization shall preclude any other or further exercise thereof or the exercise of any other right or remedy. Any waiver by a Banking Organization under this Agreement shall be in writing and signed by the Bank’s President and Chief Executive Officer. A waiver shall operate only as to the specific term or condition waived and will not constitute a waiver for the future or act on anything other than that which is specifically waived.
14. “No-Defense” Provision. The covenants set forth in this Agreement are essential terms and conditions to a Banking Organization employing or continuing to employ Employee, and shall be construed as independent of any other obligations or agreements between Employee and a Banking Organization. The existence of any claim or cause of action Employee may have against a Banking Organization, including, but not limited to, the alleged material breach by a Banking Organization of any agreement with Employee, shall not constitute a defense to the enforcement by a Banking Organization of the covenants and obligations in this Agreement and shall not relieve Employee of his or her obligations under this Agreement.
15. Jurisdiction and Venue. The parties agree that all suits, actions, proceedings, litigation, disputes, or claims relating to or arising out of this Agreement shall be filed and tried in the Superior or Circuit Court, as appropriate, of Vigo County, Indiana, or the United States District Court for the Southern District of Indiana, Terre Haute Division. In this regard, the parties hereby: (a) agree that venue shall be such stated courts; (b) irrevocably consent to service of process and to the jurisdiction and venue of such courts; and (c) irrevocably waive any claim of inconvenient forum if any such suit, claim, proceeding, litigation, dispute, or claim has been filed, brought, or made in any of such courts.
16. Construction. This Agreement is the result of negotiations between the parties, and no party shall be deemed to be the drafter of this Agreement; accordingly, this Agreement shall be interpreted and construed without any presumption or inference based upon or against the party causing this Agreement to be prepared. The language of this Agreement shall in all cases be construed as a whole, according to its fair meaning and not strictly for or against any party.
17. Review and Consultation. Employee acknowledges and agrees that he/she has read this Agreement in its entirety prior to executing it, understands the provisions and effects of this Agreement, and has consulted with or had the opportunity to consult with an attorney or other advisers as he/she deemed appropriate in connection with the execution of this Agreement.
18. Section Headings. Section headings are inserted into this Agreement for convenience only and shall not affect any construction or interpretation of this Agreement.
19. Reasonableness. Employee agrees and acknowledges that the covenants, restrictions and obligations set forth in this Agreement, including Sections 5 and 6, are reasonable and necessary to protect a Banking Organization. Employee agrees that the covenants, restrictions and obligations will not affect Employee’s ability to make a living.
20. Counterparts. This Agreement may be executed in any number of identical counterparts, each of which shall be deemed a duplicate original but all of which shall constitute one and the same agreement. The parties agree that signatures transmitted by facsimile or other electronic means are acceptable the same as original signatures for the execution of the Agreement.
21. Miscellaneous. Any change in Employee’s duties, responsibilities, title, position, compensation, or status, with a Financial Institution will not affect the validity or enforceability of this Agreement.
22. Representations. Employee represents and warrants that he/she is not a party to an agreement with his or her prior employer(s) (other than Heritage or HopFed) or any other Person that prohibits Solicitation of business or competing with that employer or other Person. Employee affirms and represents that performance of his/her job duties and responsibilities for a Financial Institution does not, and will not, breach any agreement or covenant not to Solicit business, compete in business, or keep in confidence proprietary or confidential information acquired in confidence or in trust prior to Employee’s employment with a Financial Institution. Employee further represents that he/she has not retained any documents or information relating to Employee’s prior employers (other than Heritage or HopFed) that may be considered confidential or proprietary information and that Employee has not disclosed or used, and will not disclose or use, any information relating to his or her prior employer(s) in connection with Employee’s employment with a Financial Institution.
23. Return of Property. Upon termination of Employee’s employment, Employee shall immediately return to the Bank (if subsequent to the Effective Time) or Heritage (if prior to the Effective Time), all Banking Organizations documents and property, including, but not limited to, Confidential Information, computer discs, manuals, reports, files, memoranda, records, door and file keys, passwords and access codes, and any other physical or tangible things that Employee received, prepared, or helped prepare in connection with the Employee’s employment, and Employee shall not retain any copies, duplicates, reproductions or excerpts thereof. At the Bank’s or Heritage’s request, Employee shall provide written verification under the penalties for perjury of his/her compliance with this covenant.
24. Survival. Except as set forth below, the covenants in Sections 4, 5, 6 and 23 shall survive the termination of Employee’s employment with a Financial Institution regardless of the reason for termination. If the Merger is not consummated and the Merger Agreement is terminated, Sections 4, 5, 6 and 23 shall survive with respect to First Financial and the Bank, but shall not survive with respect to HopFed or Heritage.
[Signature Page to Follow]
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date indicated below.
FIRST FINANCIAL CORPORATION
By: /s/ Norman L. Lowery Date: January 7, 2019
Printed Name: Norman L. Lowery
Title: President & CEO
FIRST FINANCIAL BANK, N.A.
By: /s/ Norman L. Lowery Date: January 7, 2019
Printed Name: Norman L. Lowery
Title: President & CEO
HOPFED BANCORP, INC.
By: /s/ John E. Peck Date: January 7, 2019
Printed Name: John E. Peck
Title: President/CEO
HERITAGE BANK USA, INC.
By: /s/ John E. Peck Date: January 7, 2019
Printed Name: John E. Peck
Title: President/CEO
EMPLOYEE
Printed Name: Billy C. Duvall Date: January 7, 2019
Signature: /s/ Billy C. Duvall
| Not mentioned |
548_nda-18 | 548_nda-18_0 | Q: Receiving Party shall not solicit some of Disclosing Party's representatives.
Text: Exhibit 10.8
NON-DISCLOSURE AND NON-SOLICITATION AGREEMENT
THIS NON-DISCLOSURE AND NON-SOLICITATION AGREEMENT (“Agreement”) is made and entered into, effective as of the date first written below, by and among First Financial Corporation (“First Financial”), First Financial Bank, N.A. (“Bank”), a wholly-owned subsidiary of First Financial, HopFed Bancorp, Inc. (“HopFed”), Heritage Bank USA, Inc., (“Heritage”), a wholly-owned subsidiary of HopFed, and Billy C. Duvall (“Employee”). “Banking Organization” shall mean First Financial, the Bank, HopFed, and/or Heritage. “Financial Institution” shall mean the Bank and/or Heritage. First Financial, the Bank, HopFed, Heritage and Employee may be collectively referenced as the “parties” or individually as a “party.”
WHEREAS, pursuant to that certain Agreement and Plan of Merger, dated January 7, 2019, by and between HopFed and First Financial (the “Merger Agreement”), HopFed shall be merged with and into First Financial (the “Merger”) effective as of the date and time provided in the Merger Agreement (the “Effective Time”); and
WHEREAS, Heritage will be merged into the Bank at the Effective Time or shortly thereafter; and
WHEREAS, Employee is currently an employee of Heritage and the Bank intends to offer employment to the Employee as an at-will employee to provide services for and on behalf of the Bank immediately upon the Effective Time;
WHEREAS, as a result of employment with Heritage up to the Effective Time and with the Bank thereafter, Employee had, has and will have access to Confidential Information (as defined below) and may have acquired or will acquire knowledge regarding Confidential Information, including, but not limited to, information regarding Customers or Potential Customers (as defined below), and a Banking Organization could be harmed if such Confidential Information were to be used, divulged or become known to any competitor of a Banking Organization or to any other Person (as defined below) or to any entity outside of a Banking Organization;
WHEREAS, Employee has developed or may develop contacts and business relationships with Customers or Potential Customers which could be used to the detriment of a Banking Organization and/or to solicit employees away from a Banking Organization; and
WHEREAS, each Banking Organization desires reasonable protection of its respective confidential business and customer information which such Banking Organization has developed and will develop over the years at substantial expense.
NOW, THEREFORE, the parties incorporate the above recitals, and in consideration of the mutual promises, covenants and agreements made herein, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Consideration/At-Will Employment.
a. This Agreement neither constitutes an employment contract or agreement to Employee for a stated period of time, nor does it alter Employee’s existing employment status.
b. In consideration of Employee’s promises, covenants and agreements set forth in this Agreement, (i) as of the date of this Agreement and up to the Effective Time Heritage shall maintain Employee’s employment with the compensation and benefits commensurate therewith, and (ii) effective as of the Effective Time, the Bank shall offer or maintain Employee’s employment as an at-will employee with the compensation and benefits commensurate therewith. For avoidance of doubt, following the Effective Time, Bank or Employee can terminate the employment at any time, with or without cause, and with or without prior notice. Employee understands and agrees, upon the Effective Time, that he/she will be an at-will employee of Bank and that this Agreement does not change or affect Employee’s employee-at-will status.
2. Duties. Employee shall devote his/her full working time and attention to the performance of those services for the Banking Organization which are assigned to him/her from time to time and to perform such services in a faithful, honest and diligent manner and in the best interest of such Banking Organization.
3. Definitions of Key Terms.
a. “Banking and Financial Services” shall mean those banking and related financial services of a Banking Organization or subsidiary thereof, including but not limited to, checking and savings accounts, health savings accounts, money market accounts, loans, credit cards, cash management services, lines of credit, investment services (such as IRAs, college savings plans, estate planning, investment planning, business planning), and trust services, provided during any period in which Employee served or will serve in any capacity for a Financial Institution and all banking and related financial services substantially similar to such banking and related financial services.
b. “Confidential Information” shall mean any and all materials, records, data, documents, lists, writings, and information (whether in writing, printed, electronically stored, computerized, on disk or otherwise, including, but not limited to, all copies, summaries, analyses, drafts, and extracts) relating or referring in any manner to trade secrets (as currently defined under applicable law, including, but not limited to, the Indiana Uniform Trade Secrets Act and any amendments or successor statutes) of a Banking Organization, as well as other non-public financial or proprietary information of a Banking Organization including, but not limited to, business reports, business plans, projections, income statements, profit and loss statements, business strategies and/or strategic plans, internal audits, sales information, sales techniques, business costs, product pricing, budgets, research and development, intellectual property, software and/or computer programs, marketing strategies or ideas, marketing plans or materials, business development plans or strategies, records or information relating to customers or account holders, customer lists, inventions, and processes, systems, methods, documentation or devices which are unique or proprietary to the business of or services or products of a Banking Organization. Confidential Information shall not include information that: (i) is or becomes readily or publicly available, not as a result of a violation of this Agreement or other obligation of confidence, directly or indirectly, of the disclosing party; (ii) is developed by other parties, including, but not limited to, subsequent employers of the Employee, independent of the knowledge or resources of the Employee based upon his or her prior access to a Banking Organization’s Confidential Information; (iii) is independently developed after the Employee’s termination of employment without reference to or use of the Confidential Information or materials based thereon; (iv) is based on the Employee’s personal experience, knowledge, enterprise and expertise in the delivery of Banking and Financial Services and which is general knowledge concerning the industry, not specific to a Banking Organization; or (v) is disclosed pursuant to the requirements of a court, administrative agency or other governmental agency.
c. “Customers” or “Customer” shall mean any Person to whom a Banking Organization rendered or provided Banking and Financial Services at any time during the one-year period prior to Employee’s termination of employment with a Financial Institution: (i) with whom Employee had any material contact (either directly or indirectly); (ii) which Employee managed, had responsibility for or regularly serviced while employed by the Financial Institution, provided, however, this shall not be construed to include supervising those who have such a relationship to the Customer; or, (iii) about which Employee obtained Confidential Information.
d. “Employees,” “Agents,” and “Independent Contractors” shall mean any and all persons employed or contracted by a Banking Organization or who were employed or contracted by a Banking Organization, as an employee, agent or independent contractor, within the six (6) month period prior to Employee’s termination of employment with either Financial Institution.
e. “Person” shall mean any individual, partnership, corporation, organization, bank, credit union, firm, association, limited liability company, trust, joint venture, company or other entity, body, agency or department thereof.
f. “Potential Customer” shall mean any Person that Employee directly solicited, targeted or specifically identified as a prospective or potential customer, or about which Employee obtained information on behalf of a Banking Organization for purposes of directly soliciting, targeting or specifically identifying as a prospective or potential customer, during the one (1) year period prior to Employee’s termination of employment with either Financial Institution.
g. “Solicit”, “Solicited” or “Solicitation” means any direct or indirect communication of any kind whatsoever, regardless of by whom initiated, inviting, advising, inducing, encouraging, enticing, or requesting either expressly or implicitly, any Person, in any manner, to take or refrain from taking action, provided, however, this definition does not include communications initiated by Customers or Potential Customers of their own initiative, without prompting or encouragement by Employee or anyone acting on Employee’s behalf.
4. Non-Disclosure of Confidential Information. During the course of Employee’s employment with a Financial Institution, Employee agrees that Employee has or will continue to become knowledgeable about, or come to be in possession of, Confidential Information. If such Confidential Information were to be divulged or become known to any competitor of a Banking Organization, or to any other Person outside of a Banking Organization, or if Employee were to consent to be employed by any competitor of a Banking Organization, or to engage in competition with a Banking Organization, such Banking Organization will be harmed. In addition, Employee has or may develop relationships with Customers or Potential Customers so that the Confidential Information could be used to Solicit the business of such Customer or Potential Customer away from a Banking Organization.
Employee shall not, directly or indirectly, use any Confidential Information for any purpose other than the benefit of a Banking Organization, and shall not directly or indirectly, disclose, communicate, deliver, exhibit or provide any Confidential Information to any Person, except other Employees or Agents of a Banking Organization who have a need to know such Confidential Information for a proper corporate or business purpose, as required in the normal course of Employee’s service as an employee. Nothing in this Section 4, or any other provision of this Agreement, shall be construed to prohibit Employee from reporting conduct to, providing truthful information to, or participating in any investigation or proceeding brought or conducted by any federal or state government agency or self-regulatory organization.
Employee specifically acknowledges that the Confidential Information, whether reduced to writing or maintained electronically or in the mind or memory of Employee and, whether compiled by a Banking Organization and/or the Employee, derives independent economic value from not being readily known to or ascertainable by proper means by others who can obtain economic value from its disclosure or use, that reasonable efforts have been put forth by each Banking Organization to maintain the secrecy of such information, that such information is the sole property of such Banking Organization and that any retention and/or use of such information during or after Employee’s employment with either Financial Institution (except in the course of performing the Employee’s duties of employment with a Financial Institution and except as otherwise set forth above) constitutes a misappropriation of a Banking Organization’s Confidential Information.
Employee agrees that all Confidential Information and all records, documents and materials relating to all Confidential Information (including all copies thereof) shall be and remain the sole and exclusive property of a Banking Organization, and upon Employee’s termination of employment, all such Confidential Information, whether in paper or electronic form, shall be returned to a Financial Institution in good condition, without Employee retaining a copy thereof, including, but not limited to, retaining an electronic copy on any electronic device regardless of whether such device is owned by Employee. At a Financial Institution’s request, Employee shall provide written verification, under the penalties for perjury, of his/her compliance with this covenant.
5. Non-Solicitation of Customers and Potential Customers. Employee acknowledges and agrees that by virtue of Employee’s position with a Banking Organization, Employee has or will have advantageous familiarity and personal contacts with Customers and Potential Customers and will have advantageous familiarity with the business operations and affairs of a Banking Organization. Employee further acknowledges and agrees that Employee has been or will be placed in a position that, were Employee to leave a Financial Institution to compete with the business of a Banking Organization, such entity from which the Employee departed would, upon violation of this Agreement, suffer irreparable harm and financial loss, as well as lost goodwill and Confidential Information. Therefore, in consideration of the covenants of all Financial Institutions contained herein, Employee agrees that during Employee’s employment with a Financial Institution, and for a period of one (1) year immediately following the termination of Employee’s employment with a Financial Institution (“Restriction Period”), for whatever reason and regardless of how Employee’s employment was terminated, Employee shall not, directly or indirectly (including, but not limited to, through other individuals, any partnership, corporation or business entity in which Employee has an ownership interest or serves as an officer, employee, independent contractor, representative, agent or consultant), either for Employee’s own benefit or the benefit of any other Person:
a. Solicit, divert, or take away (or attempt to Solicit, divert or take away) any Banking and Financial Services to or from any Customer or Potential Customer; or
b. advise, persuade or induce (or attempt to advise, persuade or induce) any Customer or Potential Customer to terminate, reduce, limit, or change the Customer’s services or business relationship, or the Potential Customer’s contemplated services or business relationship, with a Financial Institution; or
c. directly provide Banking and Financial Services to, or directly accept Banking and Financial Services from, any Customer or Potential Customer.
This Agreement is not intended to prevent Employee from accepting employment with an organization that competes with the Banking Organizations by offering Banking and Financial Services to Customers or Potential Customers. The Parties acknowledge that Employee may be associated with such an Organization and that such association may place Employee in a senior or supervisory role to those in the organization that have contact with Customers or Potential Customers. Employee shall not be in violation of this Agreement merely by engaging in such a role, which may include:
a. supervising those who provide Banking and Financial Services to Customers or Potential Customers;
b. engaging in credit review, underwriting, loan approval, or financial analysis of a Customer or Potential Customer’s business as a part of a supervisory or management role, so long as such activity does not require the disclosure of Confidential Information, direct contact with the Customer or Potential Customer, or the disclosure of Employee’s role to the Customer or Potential Customer;
c. performing or supervising those that perform data processing, accounting, rate review, document review or similar “back room” services related to a Customer or Potential Customer so long as the services do not require the disclosure of Confidential Information or contact with the Customer or Potential Customer.
6. Non-Solicitation of Employees and Others. In consideration of the covenants of all Financial Institutions contained herein, Employee agrees that during Employee’s employment with a Financial Institution, and for a period of two (2) years immediately following the termination of Employee’s employment with a Financial Institution, for whatever reason and regardless of how Employee’s employment was terminated, Employee shall not, directly or indirectly (including, but not limited to, through other individuals, any partnership, corporation or business entity in which Employee has an ownership interest or serves as an officer, employee, independent contractor, representative, agent or consultant), either for Employee’s own benefit or the benefit of any other Person:
c. Solicit, entice or persuade (or attempt to Solicit, entice or persuade) any Employee to terminate his or her employment with a Banking Organization, or offer or provide employment (whether such employment is with Employee or any other Person) either on a full-time or part-time, consulting or Independent Contractor basis; or
d. Solicit, entice or persuade (or attempt to Solicit, entice or persuade) any Independent Contractors or Agents to terminate their contract or relationship with a Banking Organization or discontinue providing services to a Banking Organization and/or Customers; or
e. Solicit, entice or persuade (or attempt to Solicit, entice or persuade) any suppliers, vendors or others who were supplying services or goods to a Banking Organization during the one year period prior to Employee’s termination, to terminate, reduce, limit or change their business or relationship with a Banking Organization.
7. Tolling of Covenants. Employee acknowledges that a Banking Organization is entitled to the full post-termination restrictions on the activities set forth in Sections 5 and 6, as applicable. Therefore, in the event any of the provisions of these Sections are breached by Employee, the commencement of the applicable post-termination restriction will not begin until Employee is in full compliance with Section 5 and/or 6.
8. Severability/Blue Pencil. Each of the provisions of this Agreement, including, but not limited to, the restrictive covenants in Sections 5 and 6, are distinct and severable, notwithstanding that the covenants may be set forth in one section for convenience. If any provision of this Agreement shall be determined to be invalid, illegal or unenforceable in whole or in part, for any reason, neither the validity of the remaining part of such provision nor the validity of any other provision of this Agreement shall in any way be affected. Should any particular restrictive covenant, provision or clause of this Agreement be held unreasonable or unenforceable for any reason, including without limitation, the time period, geographic area and/or scope of activity covered by such covenant, provision or clause, the parties acknowledge and agree that such covenant, provision or clause shall be given effect and enforce to whatever extent would be
reasonable and enforceable under applicable law. The parties expressly authorize a court of competent jurisdiction to modify or revise such provision to limit the covenants to cover the maximum period of time, range of activities or other restrictions as would be enforceable under Indiana law.
9. Available Relief. Employee agrees that a Banking Organization, or its successor or assigns, will suffer irreparable damage and injury and will not have an adequate remedy at law in the event of any breach by Employee of any provision of Sections 4, 5 or 6, herein. Accordingly, in the event of a breach or of a threatened or attempted breach by Employee of Sections 4, 5, or 6, in addition to all other remedies to which a Banking Organization is entitled under law, in equity, or otherwise (including, but not limited to, monetary damages), a Banking Organization or its assigns and successors, shall be entitled to a temporary restraining order and/or preliminary or permanent injunction (without the necessity of showing any actual damage) or a decree of specific performance and no bond or other security shall be required in that connection.
10. Enforcement/Attorneys’ Fees. In any action that is brought to enforce or interpret this Agreement, the prevailing party or its assigns and successors, shall be entitled to recover their reasonable attorneys’ and paralegal fees and expenses incurred in connection therewith. If a Banking Organization or its assigns and successors, institute any action or proceeding to enforce the provisions of this Agreement, Employee hereby waives all claims or defenses that a Banking Organization or its assigns and successors, have an adequate remedy at law, and Employee shall not urge in any such action or proceeding the claim or defense that such a remedy at law exists.
11. Assignments; Successors and Assigns. The rights and obligations of Employee hereunder are not assignable or delegable by Employee, and any prohibited assignment or delegation will be null and void. The Banking Organization may, without the consent of the Employee, assign this Agreement to any successor or in connection with any merger, consolidation, share exchange, combination, sale of stock or assets or similar transaction. The provisions hereof shall inure to the benefit of and be binding upon the successors and assigns of a Banking Organization.
12. Governing Law. This Agreement shall be interpreted under, subject to and governed by the laws of the State of Indiana, without consideration of the choice of law principles thereof, and all questions concerning its validity, construction and administration shall be determined in accordance with Indiana law.
13. Entire Agreement/Modification/Waiver. This Agreement constitutes the entire agreement among the parties relating to the subject matter hereof and expressly supersedes any prior agreements between the parties relating to the subject matter hereof. This Agreement shall not be terminated, amended or modified without the prior written consent of the Bank’s President and Chief Executive Officer and Employee. No failure or delay by a Banking Organization in exercising any right or remedy under this Agreement shall operate as a waiver thereof, nor shall any waiver by a Banking Organization under this Agreement operate or be construed as a continuing waiver or a waiver of any subsequent breach or noncompliance hereunder. No single or partial exercise of any right or remedy by a Banking Organization shall preclude any other or further exercise thereof or the exercise of any other right or remedy. Any waiver by a Banking Organization under this Agreement shall be in writing and signed by the Bank’s President and Chief Executive Officer. A waiver shall operate only as to the specific term or condition waived and will not constitute a waiver for the future or act on anything other than that which is specifically waived.
14. “No-Defense” Provision. The covenants set forth in this Agreement are essential terms and conditions to a Banking Organization employing or continuing to employ Employee, and shall be construed as independent of any other obligations or agreements between Employee and a Banking Organization. The existence of any claim or cause of action Employee may have against a Banking Organization, including, but not limited to, the alleged material breach by a Banking Organization of any agreement with Employee, shall not constitute a defense to the enforcement by a Banking Organization of the covenants and obligations in this Agreement and shall not relieve Employee of his or her obligations under this Agreement.
15. Jurisdiction and Venue. The parties agree that all suits, actions, proceedings, litigation, disputes, or claims relating to or arising out of this Agreement shall be filed and tried in the Superior or Circuit Court, as appropriate, of Vigo County, Indiana, or the United States District Court for the Southern District of Indiana, Terre Haute Division. In this regard, the parties hereby: (a) agree that venue shall be such stated courts; (b) irrevocably consent to service of process and to the jurisdiction and venue of such courts; and (c) irrevocably waive any claim of inconvenient forum if any such suit, claim, proceeding, litigation, dispute, or claim has been filed, brought, or made in any of such courts.
16. Construction. This Agreement is the result of negotiations between the parties, and no party shall be deemed to be the drafter of this Agreement; accordingly, this Agreement shall be interpreted and construed without any presumption or inference based upon or against the party causing this Agreement to be prepared. The language of this Agreement shall in all cases be construed as a whole, according to its fair meaning and not strictly for or against any party.
17. Review and Consultation. Employee acknowledges and agrees that he/she has read this Agreement in its entirety prior to executing it, understands the provisions and effects of this Agreement, and has consulted with or had the opportunity to consult with an attorney or other advisers as he/she deemed appropriate in connection with the execution of this Agreement.
18. Section Headings. Section headings are inserted into this Agreement for convenience only and shall not affect any construction or interpretation of this Agreement.
19. Reasonableness. Employee agrees and acknowledges that the covenants, restrictions and obligations set forth in this Agreement, including Sections 5 and 6, are reasonable and necessary to protect a Banking Organization. Employee agrees that the covenants, restrictions and obligations will not affect Employee’s ability to make a living.
20. Counterparts. This Agreement may be executed in any number of identical counterparts, each of which shall be deemed a duplicate original but all of which shall constitute one and the same agreement. The parties agree that signatures transmitted by facsimile or other electronic means are acceptable the same as original signatures for the execution of the Agreement.
21. Miscellaneous. Any change in Employee’s duties, responsibilities, title, position, compensation, or status, with a Financial Institution will not affect the validity or enforceability of this Agreement.
22. Representations. Employee represents and warrants that he/she is not a party to an agreement with his or her prior employer(s) (other than Heritage or HopFed) or any other Person that prohibits Solicitation of business or competing with that employer or other Person. Employee affirms and represents that performance of his/her job duties and responsibilities for a Financial Institution does not, and will not, breach any agreement or covenant not to Solicit business, compete in business, or keep in confidence proprietary or confidential information acquired in confidence or in trust prior to Employee’s employment with a Financial Institution. Employee further represents that he/she has not retained any documents or information relating to Employee’s prior employers (other than Heritage or HopFed) that may be considered confidential or proprietary information and that Employee has not disclosed or used, and will not disclose or use, any information relating to his or her prior employer(s) in connection with Employee’s employment with a Financial Institution.
23. Return of Property. Upon termination of Employee’s employment, Employee shall immediately return to the Bank (if subsequent to the Effective Time) or Heritage (if prior to the Effective Time), all Banking Organizations documents and property, including, but not limited to, Confidential Information, computer discs, manuals, reports, files, memoranda, records, door and file keys, passwords and access codes, and any other physical or tangible things that Employee received, prepared, or helped prepare in connection with the Employee’s employment, and Employee shall not retain any copies, duplicates, reproductions or excerpts thereof. At the Bank’s or Heritage’s request, Employee shall provide written verification under the penalties for perjury of his/her compliance with this covenant.
24. Survival. Except as set forth below, the covenants in Sections 4, 5, 6 and 23 shall survive the termination of Employee’s employment with a Financial Institution regardless of the reason for termination. If the Merger is not consummated and the Merger Agreement is terminated, Sections 4, 5, 6 and 23 shall survive with respect to First Financial and the Bank, but shall not survive with respect to HopFed or Heritage.
[Signature Page to Follow]
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date indicated below.
FIRST FINANCIAL CORPORATION
By: /s/ Norman L. Lowery Date: January 7, 2019
Printed Name: Norman L. Lowery
Title: President & CEO
FIRST FINANCIAL BANK, N.A.
By: /s/ Norman L. Lowery Date: January 7, 2019
Printed Name: Norman L. Lowery
Title: President & CEO
HOPFED BANCORP, INC.
By: /s/ John E. Peck Date: January 7, 2019
Printed Name: John E. Peck
Title: President/CEO
HERITAGE BANK USA, INC.
By: /s/ John E. Peck Date: January 7, 2019
Printed Name: John E. Peck
Title: President/CEO
EMPLOYEE
Printed Name: Billy C. Duvall Date: January 7, 2019
Signature: /s/ Billy C. Duvall
| Entailment |
548_nda-7 | 548_nda-7_0 | Q: Receiving Party may share some Confidential Information with some third-parties (including consultants, agents and professional advisors).
Text: Exhibit 10.8
NON-DISCLOSURE AND NON-SOLICITATION AGREEMENT
THIS NON-DISCLOSURE AND NON-SOLICITATION AGREEMENT (“Agreement”) is made and entered into, effective as of the date first written below, by and among First Financial Corporation (“First Financial”), First Financial Bank, N.A. (“Bank”), a wholly-owned subsidiary of First Financial, HopFed Bancorp, Inc. (“HopFed”), Heritage Bank USA, Inc., (“Heritage”), a wholly-owned subsidiary of HopFed, and Billy C. Duvall (“Employee”). “Banking Organization” shall mean First Financial, the Bank, HopFed, and/or Heritage. “Financial Institution” shall mean the Bank and/or Heritage. First Financial, the Bank, HopFed, Heritage and Employee may be collectively referenced as the “parties” or individually as a “party.”
WHEREAS, pursuant to that certain Agreement and Plan of Merger, dated January 7, 2019, by and between HopFed and First Financial (the “Merger Agreement”), HopFed shall be merged with and into First Financial (the “Merger”) effective as of the date and time provided in the Merger Agreement (the “Effective Time”); and
WHEREAS, Heritage will be merged into the Bank at the Effective Time or shortly thereafter; and
WHEREAS, Employee is currently an employee of Heritage and the Bank intends to offer employment to the Employee as an at-will employee to provide services for and on behalf of the Bank immediately upon the Effective Time;
WHEREAS, as a result of employment with Heritage up to the Effective Time and with the Bank thereafter, Employee had, has and will have access to Confidential Information (as defined below) and may have acquired or will acquire knowledge regarding Confidential Information, including, but not limited to, information regarding Customers or Potential Customers (as defined below), and a Banking Organization could be harmed if such Confidential Information were to be used, divulged or become known to any competitor of a Banking Organization or to any other Person (as defined below) or to any entity outside of a Banking Organization;
WHEREAS, Employee has developed or may develop contacts and business relationships with Customers or Potential Customers which could be used to the detriment of a Banking Organization and/or to solicit employees away from a Banking Organization; and
WHEREAS, each Banking Organization desires reasonable protection of its respective confidential business and customer information which such Banking Organization has developed and will develop over the years at substantial expense.
NOW, THEREFORE, the parties incorporate the above recitals, and in consideration of the mutual promises, covenants and agreements made herein, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Consideration/At-Will Employment.
a. This Agreement neither constitutes an employment contract or agreement to Employee for a stated period of time, nor does it alter Employee’s existing employment status.
b. In consideration of Employee’s promises, covenants and agreements set forth in this Agreement, (i) as of the date of this Agreement and up to the Effective Time Heritage shall maintain Employee’s employment with the compensation and benefits commensurate therewith, and (ii) effective as of the Effective Time, the Bank shall offer or maintain Employee’s employment as an at-will employee with the compensation and benefits commensurate therewith. For avoidance of doubt, following the Effective Time, Bank or Employee can terminate the employment at any time, with or without cause, and with or without prior notice. Employee understands and agrees, upon the Effective Time, that he/she will be an at-will employee of Bank and that this Agreement does not change or affect Employee’s employee-at-will status.
2. Duties. Employee shall devote his/her full working time and attention to the performance of those services for the Banking Organization which are assigned to him/her from time to time and to perform such services in a faithful, honest and diligent manner and in the best interest of such Banking Organization.
3. Definitions of Key Terms.
a. “Banking and Financial Services” shall mean those banking and related financial services of a Banking Organization or subsidiary thereof, including but not limited to, checking and savings accounts, health savings accounts, money market accounts, loans, credit cards, cash management services, lines of credit, investment services (such as IRAs, college savings plans, estate planning, investment planning, business planning), and trust services, provided during any period in which Employee served or will serve in any capacity for a Financial Institution and all banking and related financial services substantially similar to such banking and related financial services.
b. “Confidential Information” shall mean any and all materials, records, data, documents, lists, writings, and information (whether in writing, printed, electronically stored, computerized, on disk or otherwise, including, but not limited to, all copies, summaries, analyses, drafts, and extracts) relating or referring in any manner to trade secrets (as currently defined under applicable law, including, but not limited to, the Indiana Uniform Trade Secrets Act and any amendments or successor statutes) of a Banking Organization, as well as other non-public financial or proprietary information of a Banking Organization including, but not limited to, business reports, business plans, projections, income statements, profit and loss statements, business strategies and/or strategic plans, internal audits, sales information, sales techniques, business costs, product pricing, budgets, research and development, intellectual property, software and/or computer programs, marketing strategies or ideas, marketing plans or materials, business development plans or strategies, records or information relating to customers or account holders, customer lists, inventions, and processes, systems, methods, documentation or devices which are unique or proprietary to the business of or services or products of a Banking Organization. Confidential Information shall not include information that: (i) is or becomes readily or publicly available, not as a result of a violation of this Agreement or other obligation of confidence, directly or indirectly, of the disclosing party; (ii) is developed by other parties, including, but not limited to, subsequent employers of the Employee, independent of the knowledge or resources of the Employee based upon his or her prior access to a Banking Organization’s Confidential Information; (iii) is independently developed after the Employee’s termination of employment without reference to or use of the Confidential Information or materials based thereon; (iv) is based on the Employee’s personal experience, knowledge, enterprise and expertise in the delivery of Banking and Financial Services and which is general knowledge concerning the industry, not specific to a Banking Organization; or (v) is disclosed pursuant to the requirements of a court, administrative agency or other governmental agency.
c. “Customers” or “Customer” shall mean any Person to whom a Banking Organization rendered or provided Banking and Financial Services at any time during the one-year period prior to Employee’s termination of employment with a Financial Institution: (i) with whom Employee had any material contact (either directly or indirectly); (ii) which Employee managed, had responsibility for or regularly serviced while employed by the Financial Institution, provided, however, this shall not be construed to include supervising those who have such a relationship to the Customer; or, (iii) about which Employee obtained Confidential Information.
d. “Employees,” “Agents,” and “Independent Contractors” shall mean any and all persons employed or contracted by a Banking Organization or who were employed or contracted by a Banking Organization, as an employee, agent or independent contractor, within the six (6) month period prior to Employee’s termination of employment with either Financial Institution.
e. “Person” shall mean any individual, partnership, corporation, organization, bank, credit union, firm, association, limited liability company, trust, joint venture, company or other entity, body, agency or department thereof.
f. “Potential Customer” shall mean any Person that Employee directly solicited, targeted or specifically identified as a prospective or potential customer, or about which Employee obtained information on behalf of a Banking Organization for purposes of directly soliciting, targeting or specifically identifying as a prospective or potential customer, during the one (1) year period prior to Employee’s termination of employment with either Financial Institution.
g. “Solicit”, “Solicited” or “Solicitation” means any direct or indirect communication of any kind whatsoever, regardless of by whom initiated, inviting, advising, inducing, encouraging, enticing, or requesting either expressly or implicitly, any Person, in any manner, to take or refrain from taking action, provided, however, this definition does not include communications initiated by Customers or Potential Customers of their own initiative, without prompting or encouragement by Employee or anyone acting on Employee’s behalf.
4. Non-Disclosure of Confidential Information. During the course of Employee’s employment with a Financial Institution, Employee agrees that Employee has or will continue to become knowledgeable about, or come to be in possession of, Confidential Information. If such Confidential Information were to be divulged or become known to any competitor of a Banking Organization, or to any other Person outside of a Banking Organization, or if Employee were to consent to be employed by any competitor of a Banking Organization, or to engage in competition with a Banking Organization, such Banking Organization will be harmed. In addition, Employee has or may develop relationships with Customers or Potential Customers so that the Confidential Information could be used to Solicit the business of such Customer or Potential Customer away from a Banking Organization.
Employee shall not, directly or indirectly, use any Confidential Information for any purpose other than the benefit of a Banking Organization, and shall not directly or indirectly, disclose, communicate, deliver, exhibit or provide any Confidential Information to any Person, except other Employees or Agents of a Banking Organization who have a need to know such Confidential Information for a proper corporate or business purpose, as required in the normal course of Employee’s service as an employee. Nothing in this Section 4, or any other provision of this Agreement, shall be construed to prohibit Employee from reporting conduct to, providing truthful information to, or participating in any investigation or proceeding brought or conducted by any federal or state government agency or self-regulatory organization.
Employee specifically acknowledges that the Confidential Information, whether reduced to writing or maintained electronically or in the mind or memory of Employee and, whether compiled by a Banking Organization and/or the Employee, derives independent economic value from not being readily known to or ascertainable by proper means by others who can obtain economic value from its disclosure or use, that reasonable efforts have been put forth by each Banking Organization to maintain the secrecy of such information, that such information is the sole property of such Banking Organization and that any retention and/or use of such information during or after Employee’s employment with either Financial Institution (except in the course of performing the Employee’s duties of employment with a Financial Institution and except as otherwise set forth above) constitutes a misappropriation of a Banking Organization’s Confidential Information.
Employee agrees that all Confidential Information and all records, documents and materials relating to all Confidential Information (including all copies thereof) shall be and remain the sole and exclusive property of a Banking Organization, and upon Employee’s termination of employment, all such Confidential Information, whether in paper or electronic form, shall be returned to a Financial Institution in good condition, without Employee retaining a copy thereof, including, but not limited to, retaining an electronic copy on any electronic device regardless of whether such device is owned by Employee. At a Financial Institution’s request, Employee shall provide written verification, under the penalties for perjury, of his/her compliance with this covenant.
5. Non-Solicitation of Customers and Potential Customers. Employee acknowledges and agrees that by virtue of Employee’s position with a Banking Organization, Employee has or will have advantageous familiarity and personal contacts with Customers and Potential Customers and will have advantageous familiarity with the business operations and affairs of a Banking Organization. Employee further acknowledges and agrees that Employee has been or will be placed in a position that, were Employee to leave a Financial Institution to compete with the business of a Banking Organization, such entity from which the Employee departed would, upon violation of this Agreement, suffer irreparable harm and financial loss, as well as lost goodwill and Confidential Information. Therefore, in consideration of the covenants of all Financial Institutions contained herein, Employee agrees that during Employee’s employment with a Financial Institution, and for a period of one (1) year immediately following the termination of Employee’s employment with a Financial Institution (“Restriction Period”), for whatever reason and regardless of how Employee’s employment was terminated, Employee shall not, directly or indirectly (including, but not limited to, through other individuals, any partnership, corporation or business entity in which Employee has an ownership interest or serves as an officer, employee, independent contractor, representative, agent or consultant), either for Employee’s own benefit or the benefit of any other Person:
a. Solicit, divert, or take away (or attempt to Solicit, divert or take away) any Banking and Financial Services to or from any Customer or Potential Customer; or
b. advise, persuade or induce (or attempt to advise, persuade or induce) any Customer or Potential Customer to terminate, reduce, limit, or change the Customer’s services or business relationship, or the Potential Customer’s contemplated services or business relationship, with a Financial Institution; or
c. directly provide Banking and Financial Services to, or directly accept Banking and Financial Services from, any Customer or Potential Customer.
This Agreement is not intended to prevent Employee from accepting employment with an organization that competes with the Banking Organizations by offering Banking and Financial Services to Customers or Potential Customers. The Parties acknowledge that Employee may be associated with such an Organization and that such association may place Employee in a senior or supervisory role to those in the organization that have contact with Customers or Potential Customers. Employee shall not be in violation of this Agreement merely by engaging in such a role, which may include:
a. supervising those who provide Banking and Financial Services to Customers or Potential Customers;
b. engaging in credit review, underwriting, loan approval, or financial analysis of a Customer or Potential Customer’s business as a part of a supervisory or management role, so long as such activity does not require the disclosure of Confidential Information, direct contact with the Customer or Potential Customer, or the disclosure of Employee’s role to the Customer or Potential Customer;
c. performing or supervising those that perform data processing, accounting, rate review, document review or similar “back room” services related to a Customer or Potential Customer so long as the services do not require the disclosure of Confidential Information or contact with the Customer or Potential Customer.
6. Non-Solicitation of Employees and Others. In consideration of the covenants of all Financial Institutions contained herein, Employee agrees that during Employee’s employment with a Financial Institution, and for a period of two (2) years immediately following the termination of Employee’s employment with a Financial Institution, for whatever reason and regardless of how Employee’s employment was terminated, Employee shall not, directly or indirectly (including, but not limited to, through other individuals, any partnership, corporation or business entity in which Employee has an ownership interest or serves as an officer, employee, independent contractor, representative, agent or consultant), either for Employee’s own benefit or the benefit of any other Person:
c. Solicit, entice or persuade (or attempt to Solicit, entice or persuade) any Employee to terminate his or her employment with a Banking Organization, or offer or provide employment (whether such employment is with Employee or any other Person) either on a full-time or part-time, consulting or Independent Contractor basis; or
d. Solicit, entice or persuade (or attempt to Solicit, entice or persuade) any Independent Contractors or Agents to terminate their contract or relationship with a Banking Organization or discontinue providing services to a Banking Organization and/or Customers; or
e. Solicit, entice or persuade (or attempt to Solicit, entice or persuade) any suppliers, vendors or others who were supplying services or goods to a Banking Organization during the one year period prior to Employee’s termination, to terminate, reduce, limit or change their business or relationship with a Banking Organization.
7. Tolling of Covenants. Employee acknowledges that a Banking Organization is entitled to the full post-termination restrictions on the activities set forth in Sections 5 and 6, as applicable. Therefore, in the event any of the provisions of these Sections are breached by Employee, the commencement of the applicable post-termination restriction will not begin until Employee is in full compliance with Section 5 and/or 6.
8. Severability/Blue Pencil. Each of the provisions of this Agreement, including, but not limited to, the restrictive covenants in Sections 5 and 6, are distinct and severable, notwithstanding that the covenants may be set forth in one section for convenience. If any provision of this Agreement shall be determined to be invalid, illegal or unenforceable in whole or in part, for any reason, neither the validity of the remaining part of such provision nor the validity of any other provision of this Agreement shall in any way be affected. Should any particular restrictive covenant, provision or clause of this Agreement be held unreasonable or unenforceable for any reason, including without limitation, the time period, geographic area and/or scope of activity covered by such covenant, provision or clause, the parties acknowledge and agree that such covenant, provision or clause shall be given effect and enforce to whatever extent would be
reasonable and enforceable under applicable law. The parties expressly authorize a court of competent jurisdiction to modify or revise such provision to limit the covenants to cover the maximum period of time, range of activities or other restrictions as would be enforceable under Indiana law.
9. Available Relief. Employee agrees that a Banking Organization, or its successor or assigns, will suffer irreparable damage and injury and will not have an adequate remedy at law in the event of any breach by Employee of any provision of Sections 4, 5 or 6, herein. Accordingly, in the event of a breach or of a threatened or attempted breach by Employee of Sections 4, 5, or 6, in addition to all other remedies to which a Banking Organization is entitled under law, in equity, or otherwise (including, but not limited to, monetary damages), a Banking Organization or its assigns and successors, shall be entitled to a temporary restraining order and/or preliminary or permanent injunction (without the necessity of showing any actual damage) or a decree of specific performance and no bond or other security shall be required in that connection.
10. Enforcement/Attorneys’ Fees. In any action that is brought to enforce or interpret this Agreement, the prevailing party or its assigns and successors, shall be entitled to recover their reasonable attorneys’ and paralegal fees and expenses incurred in connection therewith. If a Banking Organization or its assigns and successors, institute any action or proceeding to enforce the provisions of this Agreement, Employee hereby waives all claims or defenses that a Banking Organization or its assigns and successors, have an adequate remedy at law, and Employee shall not urge in any such action or proceeding the claim or defense that such a remedy at law exists.
11. Assignments; Successors and Assigns. The rights and obligations of Employee hereunder are not assignable or delegable by Employee, and any prohibited assignment or delegation will be null and void. The Banking Organization may, without the consent of the Employee, assign this Agreement to any successor or in connection with any merger, consolidation, share exchange, combination, sale of stock or assets or similar transaction. The provisions hereof shall inure to the benefit of and be binding upon the successors and assigns of a Banking Organization.
12. Governing Law. This Agreement shall be interpreted under, subject to and governed by the laws of the State of Indiana, without consideration of the choice of law principles thereof, and all questions concerning its validity, construction and administration shall be determined in accordance with Indiana law.
13. Entire Agreement/Modification/Waiver. This Agreement constitutes the entire agreement among the parties relating to the subject matter hereof and expressly supersedes any prior agreements between the parties relating to the subject matter hereof. This Agreement shall not be terminated, amended or modified without the prior written consent of the Bank’s President and Chief Executive Officer and Employee. No failure or delay by a Banking Organization in exercising any right or remedy under this Agreement shall operate as a waiver thereof, nor shall any waiver by a Banking Organization under this Agreement operate or be construed as a continuing waiver or a waiver of any subsequent breach or noncompliance hereunder. No single or partial exercise of any right or remedy by a Banking Organization shall preclude any other or further exercise thereof or the exercise of any other right or remedy. Any waiver by a Banking Organization under this Agreement shall be in writing and signed by the Bank’s President and Chief Executive Officer. A waiver shall operate only as to the specific term or condition waived and will not constitute a waiver for the future or act on anything other than that which is specifically waived.
14. “No-Defense” Provision. The covenants set forth in this Agreement are essential terms and conditions to a Banking Organization employing or continuing to employ Employee, and shall be construed as independent of any other obligations or agreements between Employee and a Banking Organization. The existence of any claim or cause of action Employee may have against a Banking Organization, including, but not limited to, the alleged material breach by a Banking Organization of any agreement with Employee, shall not constitute a defense to the enforcement by a Banking Organization of the covenants and obligations in this Agreement and shall not relieve Employee of his or her obligations under this Agreement.
15. Jurisdiction and Venue. The parties agree that all suits, actions, proceedings, litigation, disputes, or claims relating to or arising out of this Agreement shall be filed and tried in the Superior or Circuit Court, as appropriate, of Vigo County, Indiana, or the United States District Court for the Southern District of Indiana, Terre Haute Division. In this regard, the parties hereby: (a) agree that venue shall be such stated courts; (b) irrevocably consent to service of process and to the jurisdiction and venue of such courts; and (c) irrevocably waive any claim of inconvenient forum if any such suit, claim, proceeding, litigation, dispute, or claim has been filed, brought, or made in any of such courts.
16. Construction. This Agreement is the result of negotiations between the parties, and no party shall be deemed to be the drafter of this Agreement; accordingly, this Agreement shall be interpreted and construed without any presumption or inference based upon or against the party causing this Agreement to be prepared. The language of this Agreement shall in all cases be construed as a whole, according to its fair meaning and not strictly for or against any party.
17. Review and Consultation. Employee acknowledges and agrees that he/she has read this Agreement in its entirety prior to executing it, understands the provisions and effects of this Agreement, and has consulted with or had the opportunity to consult with an attorney or other advisers as he/she deemed appropriate in connection with the execution of this Agreement.
18. Section Headings. Section headings are inserted into this Agreement for convenience only and shall not affect any construction or interpretation of this Agreement.
19. Reasonableness. Employee agrees and acknowledges that the covenants, restrictions and obligations set forth in this Agreement, including Sections 5 and 6, are reasonable and necessary to protect a Banking Organization. Employee agrees that the covenants, restrictions and obligations will not affect Employee’s ability to make a living.
20. Counterparts. This Agreement may be executed in any number of identical counterparts, each of which shall be deemed a duplicate original but all of which shall constitute one and the same agreement. The parties agree that signatures transmitted by facsimile or other electronic means are acceptable the same as original signatures for the execution of the Agreement.
21. Miscellaneous. Any change in Employee’s duties, responsibilities, title, position, compensation, or status, with a Financial Institution will not affect the validity or enforceability of this Agreement.
22. Representations. Employee represents and warrants that he/she is not a party to an agreement with his or her prior employer(s) (other than Heritage or HopFed) or any other Person that prohibits Solicitation of business or competing with that employer or other Person. Employee affirms and represents that performance of his/her job duties and responsibilities for a Financial Institution does not, and will not, breach any agreement or covenant not to Solicit business, compete in business, or keep in confidence proprietary or confidential information acquired in confidence or in trust prior to Employee’s employment with a Financial Institution. Employee further represents that he/she has not retained any documents or information relating to Employee’s prior employers (other than Heritage or HopFed) that may be considered confidential or proprietary information and that Employee has not disclosed or used, and will not disclose or use, any information relating to his or her prior employer(s) in connection with Employee’s employment with a Financial Institution.
23. Return of Property. Upon termination of Employee’s employment, Employee shall immediately return to the Bank (if subsequent to the Effective Time) or Heritage (if prior to the Effective Time), all Banking Organizations documents and property, including, but not limited to, Confidential Information, computer discs, manuals, reports, files, memoranda, records, door and file keys, passwords and access codes, and any other physical or tangible things that Employee received, prepared, or helped prepare in connection with the Employee’s employment, and Employee shall not retain any copies, duplicates, reproductions or excerpts thereof. At the Bank’s or Heritage’s request, Employee shall provide written verification under the penalties for perjury of his/her compliance with this covenant.
24. Survival. Except as set forth below, the covenants in Sections 4, 5, 6 and 23 shall survive the termination of Employee’s employment with a Financial Institution regardless of the reason for termination. If the Merger is not consummated and the Merger Agreement is terminated, Sections 4, 5, 6 and 23 shall survive with respect to First Financial and the Bank, but shall not survive with respect to HopFed or Heritage.
[Signature Page to Follow]
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date indicated below.
FIRST FINANCIAL CORPORATION
By: /s/ Norman L. Lowery Date: January 7, 2019
Printed Name: Norman L. Lowery
Title: President & CEO
FIRST FINANCIAL BANK, N.A.
By: /s/ Norman L. Lowery Date: January 7, 2019
Printed Name: Norman L. Lowery
Title: President & CEO
HOPFED BANCORP, INC.
By: /s/ John E. Peck Date: January 7, 2019
Printed Name: John E. Peck
Title: President/CEO
HERITAGE BANK USA, INC.
By: /s/ John E. Peck Date: January 7, 2019
Printed Name: John E. Peck
Title: President/CEO
EMPLOYEE
Printed Name: Billy C. Duvall Date: January 7, 2019
Signature: /s/ Billy C. Duvall
| Entailment |
548_nda-17 | 548_nda-17_0 | Q: Receiving Party may create a copy of some Confidential Information in some circumstances.
Text: Exhibit 10.8
NON-DISCLOSURE AND NON-SOLICITATION AGREEMENT
THIS NON-DISCLOSURE AND NON-SOLICITATION AGREEMENT (“Agreement”) is made and entered into, effective as of the date first written below, by and among First Financial Corporation (“First Financial”), First Financial Bank, N.A. (“Bank”), a wholly-owned subsidiary of First Financial, HopFed Bancorp, Inc. (“HopFed”), Heritage Bank USA, Inc., (“Heritage”), a wholly-owned subsidiary of HopFed, and Billy C. Duvall (“Employee”). “Banking Organization” shall mean First Financial, the Bank, HopFed, and/or Heritage. “Financial Institution” shall mean the Bank and/or Heritage. First Financial, the Bank, HopFed, Heritage and Employee may be collectively referenced as the “parties” or individually as a “party.”
WHEREAS, pursuant to that certain Agreement and Plan of Merger, dated January 7, 2019, by and between HopFed and First Financial (the “Merger Agreement”), HopFed shall be merged with and into First Financial (the “Merger”) effective as of the date and time provided in the Merger Agreement (the “Effective Time”); and
WHEREAS, Heritage will be merged into the Bank at the Effective Time or shortly thereafter; and
WHEREAS, Employee is currently an employee of Heritage and the Bank intends to offer employment to the Employee as an at-will employee to provide services for and on behalf of the Bank immediately upon the Effective Time;
WHEREAS, as a result of employment with Heritage up to the Effective Time and with the Bank thereafter, Employee had, has and will have access to Confidential Information (as defined below) and may have acquired or will acquire knowledge regarding Confidential Information, including, but not limited to, information regarding Customers or Potential Customers (as defined below), and a Banking Organization could be harmed if such Confidential Information were to be used, divulged or become known to any competitor of a Banking Organization or to any other Person (as defined below) or to any entity outside of a Banking Organization;
WHEREAS, Employee has developed or may develop contacts and business relationships with Customers or Potential Customers which could be used to the detriment of a Banking Organization and/or to solicit employees away from a Banking Organization; and
WHEREAS, each Banking Organization desires reasonable protection of its respective confidential business and customer information which such Banking Organization has developed and will develop over the years at substantial expense.
NOW, THEREFORE, the parties incorporate the above recitals, and in consideration of the mutual promises, covenants and agreements made herein, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Consideration/At-Will Employment.
a. This Agreement neither constitutes an employment contract or agreement to Employee for a stated period of time, nor does it alter Employee’s existing employment status.
b. In consideration of Employee’s promises, covenants and agreements set forth in this Agreement, (i) as of the date of this Agreement and up to the Effective Time Heritage shall maintain Employee’s employment with the compensation and benefits commensurate therewith, and (ii) effective as of the Effective Time, the Bank shall offer or maintain Employee’s employment as an at-will employee with the compensation and benefits commensurate therewith. For avoidance of doubt, following the Effective Time, Bank or Employee can terminate the employment at any time, with or without cause, and with or without prior notice. Employee understands and agrees, upon the Effective Time, that he/she will be an at-will employee of Bank and that this Agreement does not change or affect Employee’s employee-at-will status.
2. Duties. Employee shall devote his/her full working time and attention to the performance of those services for the Banking Organization which are assigned to him/her from time to time and to perform such services in a faithful, honest and diligent manner and in the best interest of such Banking Organization.
3. Definitions of Key Terms.
a. “Banking and Financial Services” shall mean those banking and related financial services of a Banking Organization or subsidiary thereof, including but not limited to, checking and savings accounts, health savings accounts, money market accounts, loans, credit cards, cash management services, lines of credit, investment services (such as IRAs, college savings plans, estate planning, investment planning, business planning), and trust services, provided during any period in which Employee served or will serve in any capacity for a Financial Institution and all banking and related financial services substantially similar to such banking and related financial services.
b. “Confidential Information” shall mean any and all materials, records, data, documents, lists, writings, and information (whether in writing, printed, electronically stored, computerized, on disk or otherwise, including, but not limited to, all copies, summaries, analyses, drafts, and extracts) relating or referring in any manner to trade secrets (as currently defined under applicable law, including, but not limited to, the Indiana Uniform Trade Secrets Act and any amendments or successor statutes) of a Banking Organization, as well as other non-public financial or proprietary information of a Banking Organization including, but not limited to, business reports, business plans, projections, income statements, profit and loss statements, business strategies and/or strategic plans, internal audits, sales information, sales techniques, business costs, product pricing, budgets, research and development, intellectual property, software and/or computer programs, marketing strategies or ideas, marketing plans or materials, business development plans or strategies, records or information relating to customers or account holders, customer lists, inventions, and processes, systems, methods, documentation or devices which are unique or proprietary to the business of or services or products of a Banking Organization. Confidential Information shall not include information that: (i) is or becomes readily or publicly available, not as a result of a violation of this Agreement or other obligation of confidence, directly or indirectly, of the disclosing party; (ii) is developed by other parties, including, but not limited to, subsequent employers of the Employee, independent of the knowledge or resources of the Employee based upon his or her prior access to a Banking Organization’s Confidential Information; (iii) is independently developed after the Employee’s termination of employment without reference to or use of the Confidential Information or materials based thereon; (iv) is based on the Employee’s personal experience, knowledge, enterprise and expertise in the delivery of Banking and Financial Services and which is general knowledge concerning the industry, not specific to a Banking Organization; or (v) is disclosed pursuant to the requirements of a court, administrative agency or other governmental agency.
c. “Customers” or “Customer” shall mean any Person to whom a Banking Organization rendered or provided Banking and Financial Services at any time during the one-year period prior to Employee’s termination of employment with a Financial Institution: (i) with whom Employee had any material contact (either directly or indirectly); (ii) which Employee managed, had responsibility for or regularly serviced while employed by the Financial Institution, provided, however, this shall not be construed to include supervising those who have such a relationship to the Customer; or, (iii) about which Employee obtained Confidential Information.
d. “Employees,” “Agents,” and “Independent Contractors” shall mean any and all persons employed or contracted by a Banking Organization or who were employed or contracted by a Banking Organization, as an employee, agent or independent contractor, within the six (6) month period prior to Employee’s termination of employment with either Financial Institution.
e. “Person” shall mean any individual, partnership, corporation, organization, bank, credit union, firm, association, limited liability company, trust, joint venture, company or other entity, body, agency or department thereof.
f. “Potential Customer” shall mean any Person that Employee directly solicited, targeted or specifically identified as a prospective or potential customer, or about which Employee obtained information on behalf of a Banking Organization for purposes of directly soliciting, targeting or specifically identifying as a prospective or potential customer, during the one (1) year period prior to Employee’s termination of employment with either Financial Institution.
g. “Solicit”, “Solicited” or “Solicitation” means any direct or indirect communication of any kind whatsoever, regardless of by whom initiated, inviting, advising, inducing, encouraging, enticing, or requesting either expressly or implicitly, any Person, in any manner, to take or refrain from taking action, provided, however, this definition does not include communications initiated by Customers or Potential Customers of their own initiative, without prompting or encouragement by Employee or anyone acting on Employee’s behalf.
4. Non-Disclosure of Confidential Information. During the course of Employee’s employment with a Financial Institution, Employee agrees that Employee has or will continue to become knowledgeable about, or come to be in possession of, Confidential Information. If such Confidential Information were to be divulged or become known to any competitor of a Banking Organization, or to any other Person outside of a Banking Organization, or if Employee were to consent to be employed by any competitor of a Banking Organization, or to engage in competition with a Banking Organization, such Banking Organization will be harmed. In addition, Employee has or may develop relationships with Customers or Potential Customers so that the Confidential Information could be used to Solicit the business of such Customer or Potential Customer away from a Banking Organization.
Employee shall not, directly or indirectly, use any Confidential Information for any purpose other than the benefit of a Banking Organization, and shall not directly or indirectly, disclose, communicate, deliver, exhibit or provide any Confidential Information to any Person, except other Employees or Agents of a Banking Organization who have a need to know such Confidential Information for a proper corporate or business purpose, as required in the normal course of Employee’s service as an employee. Nothing in this Section 4, or any other provision of this Agreement, shall be construed to prohibit Employee from reporting conduct to, providing truthful information to, or participating in any investigation or proceeding brought or conducted by any federal or state government agency or self-regulatory organization.
Employee specifically acknowledges that the Confidential Information, whether reduced to writing or maintained electronically or in the mind or memory of Employee and, whether compiled by a Banking Organization and/or the Employee, derives independent economic value from not being readily known to or ascertainable by proper means by others who can obtain economic value from its disclosure or use, that reasonable efforts have been put forth by each Banking Organization to maintain the secrecy of such information, that such information is the sole property of such Banking Organization and that any retention and/or use of such information during or after Employee’s employment with either Financial Institution (except in the course of performing the Employee’s duties of employment with a Financial Institution and except as otherwise set forth above) constitutes a misappropriation of a Banking Organization’s Confidential Information.
Employee agrees that all Confidential Information and all records, documents and materials relating to all Confidential Information (including all copies thereof) shall be and remain the sole and exclusive property of a Banking Organization, and upon Employee’s termination of employment, all such Confidential Information, whether in paper or electronic form, shall be returned to a Financial Institution in good condition, without Employee retaining a copy thereof, including, but not limited to, retaining an electronic copy on any electronic device regardless of whether such device is owned by Employee. At a Financial Institution’s request, Employee shall provide written verification, under the penalties for perjury, of his/her compliance with this covenant.
5. Non-Solicitation of Customers and Potential Customers. Employee acknowledges and agrees that by virtue of Employee’s position with a Banking Organization, Employee has or will have advantageous familiarity and personal contacts with Customers and Potential Customers and will have advantageous familiarity with the business operations and affairs of a Banking Organization. Employee further acknowledges and agrees that Employee has been or will be placed in a position that, were Employee to leave a Financial Institution to compete with the business of a Banking Organization, such entity from which the Employee departed would, upon violation of this Agreement, suffer irreparable harm and financial loss, as well as lost goodwill and Confidential Information. Therefore, in consideration of the covenants of all Financial Institutions contained herein, Employee agrees that during Employee’s employment with a Financial Institution, and for a period of one (1) year immediately following the termination of Employee’s employment with a Financial Institution (“Restriction Period”), for whatever reason and regardless of how Employee’s employment was terminated, Employee shall not, directly or indirectly (including, but not limited to, through other individuals, any partnership, corporation or business entity in which Employee has an ownership interest or serves as an officer, employee, independent contractor, representative, agent or consultant), either for Employee’s own benefit or the benefit of any other Person:
a. Solicit, divert, or take away (or attempt to Solicit, divert or take away) any Banking and Financial Services to or from any Customer or Potential Customer; or
b. advise, persuade or induce (or attempt to advise, persuade or induce) any Customer or Potential Customer to terminate, reduce, limit, or change the Customer’s services or business relationship, or the Potential Customer’s contemplated services or business relationship, with a Financial Institution; or
c. directly provide Banking and Financial Services to, or directly accept Banking and Financial Services from, any Customer or Potential Customer.
This Agreement is not intended to prevent Employee from accepting employment with an organization that competes with the Banking Organizations by offering Banking and Financial Services to Customers or Potential Customers. The Parties acknowledge that Employee may be associated with such an Organization and that such association may place Employee in a senior or supervisory role to those in the organization that have contact with Customers or Potential Customers. Employee shall not be in violation of this Agreement merely by engaging in such a role, which may include:
a. supervising those who provide Banking and Financial Services to Customers or Potential Customers;
b. engaging in credit review, underwriting, loan approval, or financial analysis of a Customer or Potential Customer’s business as a part of a supervisory or management role, so long as such activity does not require the disclosure of Confidential Information, direct contact with the Customer or Potential Customer, or the disclosure of Employee’s role to the Customer or Potential Customer;
c. performing or supervising those that perform data processing, accounting, rate review, document review or similar “back room” services related to a Customer or Potential Customer so long as the services do not require the disclosure of Confidential Information or contact with the Customer or Potential Customer.
6. Non-Solicitation of Employees and Others. In consideration of the covenants of all Financial Institutions contained herein, Employee agrees that during Employee’s employment with a Financial Institution, and for a period of two (2) years immediately following the termination of Employee’s employment with a Financial Institution, for whatever reason and regardless of how Employee’s employment was terminated, Employee shall not, directly or indirectly (including, but not limited to, through other individuals, any partnership, corporation or business entity in which Employee has an ownership interest or serves as an officer, employee, independent contractor, representative, agent or consultant), either for Employee’s own benefit or the benefit of any other Person:
c. Solicit, entice or persuade (or attempt to Solicit, entice or persuade) any Employee to terminate his or her employment with a Banking Organization, or offer or provide employment (whether such employment is with Employee or any other Person) either on a full-time or part-time, consulting or Independent Contractor basis; or
d. Solicit, entice or persuade (or attempt to Solicit, entice or persuade) any Independent Contractors or Agents to terminate their contract or relationship with a Banking Organization or discontinue providing services to a Banking Organization and/or Customers; or
e. Solicit, entice or persuade (or attempt to Solicit, entice or persuade) any suppliers, vendors or others who were supplying services or goods to a Banking Organization during the one year period prior to Employee’s termination, to terminate, reduce, limit or change their business or relationship with a Banking Organization.
7. Tolling of Covenants. Employee acknowledges that a Banking Organization is entitled to the full post-termination restrictions on the activities set forth in Sections 5 and 6, as applicable. Therefore, in the event any of the provisions of these Sections are breached by Employee, the commencement of the applicable post-termination restriction will not begin until Employee is in full compliance with Section 5 and/or 6.
8. Severability/Blue Pencil. Each of the provisions of this Agreement, including, but not limited to, the restrictive covenants in Sections 5 and 6, are distinct and severable, notwithstanding that the covenants may be set forth in one section for convenience. If any provision of this Agreement shall be determined to be invalid, illegal or unenforceable in whole or in part, for any reason, neither the validity of the remaining part of such provision nor the validity of any other provision of this Agreement shall in any way be affected. Should any particular restrictive covenant, provision or clause of this Agreement be held unreasonable or unenforceable for any reason, including without limitation, the time period, geographic area and/or scope of activity covered by such covenant, provision or clause, the parties acknowledge and agree that such covenant, provision or clause shall be given effect and enforce to whatever extent would be
reasonable and enforceable under applicable law. The parties expressly authorize a court of competent jurisdiction to modify or revise such provision to limit the covenants to cover the maximum period of time, range of activities or other restrictions as would be enforceable under Indiana law.
9. Available Relief. Employee agrees that a Banking Organization, or its successor or assigns, will suffer irreparable damage and injury and will not have an adequate remedy at law in the event of any breach by Employee of any provision of Sections 4, 5 or 6, herein. Accordingly, in the event of a breach or of a threatened or attempted breach by Employee of Sections 4, 5, or 6, in addition to all other remedies to which a Banking Organization is entitled under law, in equity, or otherwise (including, but not limited to, monetary damages), a Banking Organization or its assigns and successors, shall be entitled to a temporary restraining order and/or preliminary or permanent injunction (without the necessity of showing any actual damage) or a decree of specific performance and no bond or other security shall be required in that connection.
10. Enforcement/Attorneys’ Fees. In any action that is brought to enforce or interpret this Agreement, the prevailing party or its assigns and successors, shall be entitled to recover their reasonable attorneys’ and paralegal fees and expenses incurred in connection therewith. If a Banking Organization or its assigns and successors, institute any action or proceeding to enforce the provisions of this Agreement, Employee hereby waives all claims or defenses that a Banking Organization or its assigns and successors, have an adequate remedy at law, and Employee shall not urge in any such action or proceeding the claim or defense that such a remedy at law exists.
11. Assignments; Successors and Assigns. The rights and obligations of Employee hereunder are not assignable or delegable by Employee, and any prohibited assignment or delegation will be null and void. The Banking Organization may, without the consent of the Employee, assign this Agreement to any successor or in connection with any merger, consolidation, share exchange, combination, sale of stock or assets or similar transaction. The provisions hereof shall inure to the benefit of and be binding upon the successors and assigns of a Banking Organization.
12. Governing Law. This Agreement shall be interpreted under, subject to and governed by the laws of the State of Indiana, without consideration of the choice of law principles thereof, and all questions concerning its validity, construction and administration shall be determined in accordance with Indiana law.
13. Entire Agreement/Modification/Waiver. This Agreement constitutes the entire agreement among the parties relating to the subject matter hereof and expressly supersedes any prior agreements between the parties relating to the subject matter hereof. This Agreement shall not be terminated, amended or modified without the prior written consent of the Bank’s President and Chief Executive Officer and Employee. No failure or delay by a Banking Organization in exercising any right or remedy under this Agreement shall operate as a waiver thereof, nor shall any waiver by a Banking Organization under this Agreement operate or be construed as a continuing waiver or a waiver of any subsequent breach or noncompliance hereunder. No single or partial exercise of any right or remedy by a Banking Organization shall preclude any other or further exercise thereof or the exercise of any other right or remedy. Any waiver by a Banking Organization under this Agreement shall be in writing and signed by the Bank’s President and Chief Executive Officer. A waiver shall operate only as to the specific term or condition waived and will not constitute a waiver for the future or act on anything other than that which is specifically waived.
14. “No-Defense” Provision. The covenants set forth in this Agreement are essential terms and conditions to a Banking Organization employing or continuing to employ Employee, and shall be construed as independent of any other obligations or agreements between Employee and a Banking Organization. The existence of any claim or cause of action Employee may have against a Banking Organization, including, but not limited to, the alleged material breach by a Banking Organization of any agreement with Employee, shall not constitute a defense to the enforcement by a Banking Organization of the covenants and obligations in this Agreement and shall not relieve Employee of his or her obligations under this Agreement.
15. Jurisdiction and Venue. The parties agree that all suits, actions, proceedings, litigation, disputes, or claims relating to or arising out of this Agreement shall be filed and tried in the Superior or Circuit Court, as appropriate, of Vigo County, Indiana, or the United States District Court for the Southern District of Indiana, Terre Haute Division. In this regard, the parties hereby: (a) agree that venue shall be such stated courts; (b) irrevocably consent to service of process and to the jurisdiction and venue of such courts; and (c) irrevocably waive any claim of inconvenient forum if any such suit, claim, proceeding, litigation, dispute, or claim has been filed, brought, or made in any of such courts.
16. Construction. This Agreement is the result of negotiations between the parties, and no party shall be deemed to be the drafter of this Agreement; accordingly, this Agreement shall be interpreted and construed without any presumption or inference based upon or against the party causing this Agreement to be prepared. The language of this Agreement shall in all cases be construed as a whole, according to its fair meaning and not strictly for or against any party.
17. Review and Consultation. Employee acknowledges and agrees that he/she has read this Agreement in its entirety prior to executing it, understands the provisions and effects of this Agreement, and has consulted with or had the opportunity to consult with an attorney or other advisers as he/she deemed appropriate in connection with the execution of this Agreement.
18. Section Headings. Section headings are inserted into this Agreement for convenience only and shall not affect any construction or interpretation of this Agreement.
19. Reasonableness. Employee agrees and acknowledges that the covenants, restrictions and obligations set forth in this Agreement, including Sections 5 and 6, are reasonable and necessary to protect a Banking Organization. Employee agrees that the covenants, restrictions and obligations will not affect Employee’s ability to make a living.
20. Counterparts. This Agreement may be executed in any number of identical counterparts, each of which shall be deemed a duplicate original but all of which shall constitute one and the same agreement. The parties agree that signatures transmitted by facsimile or other electronic means are acceptable the same as original signatures for the execution of the Agreement.
21. Miscellaneous. Any change in Employee’s duties, responsibilities, title, position, compensation, or status, with a Financial Institution will not affect the validity or enforceability of this Agreement.
22. Representations. Employee represents and warrants that he/she is not a party to an agreement with his or her prior employer(s) (other than Heritage or HopFed) or any other Person that prohibits Solicitation of business or competing with that employer or other Person. Employee affirms and represents that performance of his/her job duties and responsibilities for a Financial Institution does not, and will not, breach any agreement or covenant not to Solicit business, compete in business, or keep in confidence proprietary or confidential information acquired in confidence or in trust prior to Employee’s employment with a Financial Institution. Employee further represents that he/she has not retained any documents or information relating to Employee’s prior employers (other than Heritage or HopFed) that may be considered confidential or proprietary information and that Employee has not disclosed or used, and will not disclose or use, any information relating to his or her prior employer(s) in connection with Employee’s employment with a Financial Institution.
23. Return of Property. Upon termination of Employee’s employment, Employee shall immediately return to the Bank (if subsequent to the Effective Time) or Heritage (if prior to the Effective Time), all Banking Organizations documents and property, including, but not limited to, Confidential Information, computer discs, manuals, reports, files, memoranda, records, door and file keys, passwords and access codes, and any other physical or tangible things that Employee received, prepared, or helped prepare in connection with the Employee’s employment, and Employee shall not retain any copies, duplicates, reproductions or excerpts thereof. At the Bank’s or Heritage’s request, Employee shall provide written verification under the penalties for perjury of his/her compliance with this covenant.
24. Survival. Except as set forth below, the covenants in Sections 4, 5, 6 and 23 shall survive the termination of Employee’s employment with a Financial Institution regardless of the reason for termination. If the Merger is not consummated and the Merger Agreement is terminated, Sections 4, 5, 6 and 23 shall survive with respect to First Financial and the Bank, but shall not survive with respect to HopFed or Heritage.
[Signature Page to Follow]
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date indicated below.
FIRST FINANCIAL CORPORATION
By: /s/ Norman L. Lowery Date: January 7, 2019
Printed Name: Norman L. Lowery
Title: President & CEO
FIRST FINANCIAL BANK, N.A.
By: /s/ Norman L. Lowery Date: January 7, 2019
Printed Name: Norman L. Lowery
Title: President & CEO
HOPFED BANCORP, INC.
By: /s/ John E. Peck Date: January 7, 2019
Printed Name: John E. Peck
Title: President/CEO
HERITAGE BANK USA, INC.
By: /s/ John E. Peck Date: January 7, 2019
Printed Name: John E. Peck
Title: President/CEO
EMPLOYEE
Printed Name: Billy C. Duvall Date: January 7, 2019
Signature: /s/ Billy C. Duvall
| Not mentioned |
548_nda-8 | 548_nda-8_0 | Q: Receiving Party shall notify Disclosing Party in case Receiving Party is required by law, regulation or judicial process to disclose any Confidential Information.
Text: Exhibit 10.8
NON-DISCLOSURE AND NON-SOLICITATION AGREEMENT
THIS NON-DISCLOSURE AND NON-SOLICITATION AGREEMENT (“Agreement”) is made and entered into, effective as of the date first written below, by and among First Financial Corporation (“First Financial”), First Financial Bank, N.A. (“Bank”), a wholly-owned subsidiary of First Financial, HopFed Bancorp, Inc. (“HopFed”), Heritage Bank USA, Inc., (“Heritage”), a wholly-owned subsidiary of HopFed, and Billy C. Duvall (“Employee”). “Banking Organization” shall mean First Financial, the Bank, HopFed, and/or Heritage. “Financial Institution” shall mean the Bank and/or Heritage. First Financial, the Bank, HopFed, Heritage and Employee may be collectively referenced as the “parties” or individually as a “party.”
WHEREAS, pursuant to that certain Agreement and Plan of Merger, dated January 7, 2019, by and between HopFed and First Financial (the “Merger Agreement”), HopFed shall be merged with and into First Financial (the “Merger”) effective as of the date and time provided in the Merger Agreement (the “Effective Time”); and
WHEREAS, Heritage will be merged into the Bank at the Effective Time or shortly thereafter; and
WHEREAS, Employee is currently an employee of Heritage and the Bank intends to offer employment to the Employee as an at-will employee to provide services for and on behalf of the Bank immediately upon the Effective Time;
WHEREAS, as a result of employment with Heritage up to the Effective Time and with the Bank thereafter, Employee had, has and will have access to Confidential Information (as defined below) and may have acquired or will acquire knowledge regarding Confidential Information, including, but not limited to, information regarding Customers or Potential Customers (as defined below), and a Banking Organization could be harmed if such Confidential Information were to be used, divulged or become known to any competitor of a Banking Organization or to any other Person (as defined below) or to any entity outside of a Banking Organization;
WHEREAS, Employee has developed or may develop contacts and business relationships with Customers or Potential Customers which could be used to the detriment of a Banking Organization and/or to solicit employees away from a Banking Organization; and
WHEREAS, each Banking Organization desires reasonable protection of its respective confidential business and customer information which such Banking Organization has developed and will develop over the years at substantial expense.
NOW, THEREFORE, the parties incorporate the above recitals, and in consideration of the mutual promises, covenants and agreements made herein, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Consideration/At-Will Employment.
a. This Agreement neither constitutes an employment contract or agreement to Employee for a stated period of time, nor does it alter Employee’s existing employment status.
b. In consideration of Employee’s promises, covenants and agreements set forth in this Agreement, (i) as of the date of this Agreement and up to the Effective Time Heritage shall maintain Employee’s employment with the compensation and benefits commensurate therewith, and (ii) effective as of the Effective Time, the Bank shall offer or maintain Employee’s employment as an at-will employee with the compensation and benefits commensurate therewith. For avoidance of doubt, following the Effective Time, Bank or Employee can terminate the employment at any time, with or without cause, and with or without prior notice. Employee understands and agrees, upon the Effective Time, that he/she will be an at-will employee of Bank and that this Agreement does not change or affect Employee’s employee-at-will status.
2. Duties. Employee shall devote his/her full working time and attention to the performance of those services for the Banking Organization which are assigned to him/her from time to time and to perform such services in a faithful, honest and diligent manner and in the best interest of such Banking Organization.
3. Definitions of Key Terms.
a. “Banking and Financial Services” shall mean those banking and related financial services of a Banking Organization or subsidiary thereof, including but not limited to, checking and savings accounts, health savings accounts, money market accounts, loans, credit cards, cash management services, lines of credit, investment services (such as IRAs, college savings plans, estate planning, investment planning, business planning), and trust services, provided during any period in which Employee served or will serve in any capacity for a Financial Institution and all banking and related financial services substantially similar to such banking and related financial services.
b. “Confidential Information” shall mean any and all materials, records, data, documents, lists, writings, and information (whether in writing, printed, electronically stored, computerized, on disk or otherwise, including, but not limited to, all copies, summaries, analyses, drafts, and extracts) relating or referring in any manner to trade secrets (as currently defined under applicable law, including, but not limited to, the Indiana Uniform Trade Secrets Act and any amendments or successor statutes) of a Banking Organization, as well as other non-public financial or proprietary information of a Banking Organization including, but not limited to, business reports, business plans, projections, income statements, profit and loss statements, business strategies and/or strategic plans, internal audits, sales information, sales techniques, business costs, product pricing, budgets, research and development, intellectual property, software and/or computer programs, marketing strategies or ideas, marketing plans or materials, business development plans or strategies, records or information relating to customers or account holders, customer lists, inventions, and processes, systems, methods, documentation or devices which are unique or proprietary to the business of or services or products of a Banking Organization. Confidential Information shall not include information that: (i) is or becomes readily or publicly available, not as a result of a violation of this Agreement or other obligation of confidence, directly or indirectly, of the disclosing party; (ii) is developed by other parties, including, but not limited to, subsequent employers of the Employee, independent of the knowledge or resources of the Employee based upon his or her prior access to a Banking Organization’s Confidential Information; (iii) is independently developed after the Employee’s termination of employment without reference to or use of the Confidential Information or materials based thereon; (iv) is based on the Employee’s personal experience, knowledge, enterprise and expertise in the delivery of Banking and Financial Services and which is general knowledge concerning the industry, not specific to a Banking Organization; or (v) is disclosed pursuant to the requirements of a court, administrative agency or other governmental agency.
c. “Customers” or “Customer” shall mean any Person to whom a Banking Organization rendered or provided Banking and Financial Services at any time during the one-year period prior to Employee’s termination of employment with a Financial Institution: (i) with whom Employee had any material contact (either directly or indirectly); (ii) which Employee managed, had responsibility for or regularly serviced while employed by the Financial Institution, provided, however, this shall not be construed to include supervising those who have such a relationship to the Customer; or, (iii) about which Employee obtained Confidential Information.
d. “Employees,” “Agents,” and “Independent Contractors” shall mean any and all persons employed or contracted by a Banking Organization or who were employed or contracted by a Banking Organization, as an employee, agent or independent contractor, within the six (6) month period prior to Employee’s termination of employment with either Financial Institution.
e. “Person” shall mean any individual, partnership, corporation, organization, bank, credit union, firm, association, limited liability company, trust, joint venture, company or other entity, body, agency or department thereof.
f. “Potential Customer” shall mean any Person that Employee directly solicited, targeted or specifically identified as a prospective or potential customer, or about which Employee obtained information on behalf of a Banking Organization for purposes of directly soliciting, targeting or specifically identifying as a prospective or potential customer, during the one (1) year period prior to Employee’s termination of employment with either Financial Institution.
g. “Solicit”, “Solicited” or “Solicitation” means any direct or indirect communication of any kind whatsoever, regardless of by whom initiated, inviting, advising, inducing, encouraging, enticing, or requesting either expressly or implicitly, any Person, in any manner, to take or refrain from taking action, provided, however, this definition does not include communications initiated by Customers or Potential Customers of their own initiative, without prompting or encouragement by Employee or anyone acting on Employee’s behalf.
4. Non-Disclosure of Confidential Information. During the course of Employee’s employment with a Financial Institution, Employee agrees that Employee has or will continue to become knowledgeable about, or come to be in possession of, Confidential Information. If such Confidential Information were to be divulged or become known to any competitor of a Banking Organization, or to any other Person outside of a Banking Organization, or if Employee were to consent to be employed by any competitor of a Banking Organization, or to engage in competition with a Banking Organization, such Banking Organization will be harmed. In addition, Employee has or may develop relationships with Customers or Potential Customers so that the Confidential Information could be used to Solicit the business of such Customer or Potential Customer away from a Banking Organization.
Employee shall not, directly or indirectly, use any Confidential Information for any purpose other than the benefit of a Banking Organization, and shall not directly or indirectly, disclose, communicate, deliver, exhibit or provide any Confidential Information to any Person, except other Employees or Agents of a Banking Organization who have a need to know such Confidential Information for a proper corporate or business purpose, as required in the normal course of Employee’s service as an employee. Nothing in this Section 4, or any other provision of this Agreement, shall be construed to prohibit Employee from reporting conduct to, providing truthful information to, or participating in any investigation or proceeding brought or conducted by any federal or state government agency or self-regulatory organization.
Employee specifically acknowledges that the Confidential Information, whether reduced to writing or maintained electronically or in the mind or memory of Employee and, whether compiled by a Banking Organization and/or the Employee, derives independent economic value from not being readily known to or ascertainable by proper means by others who can obtain economic value from its disclosure or use, that reasonable efforts have been put forth by each Banking Organization to maintain the secrecy of such information, that such information is the sole property of such Banking Organization and that any retention and/or use of such information during or after Employee’s employment with either Financial Institution (except in the course of performing the Employee’s duties of employment with a Financial Institution and except as otherwise set forth above) constitutes a misappropriation of a Banking Organization’s Confidential Information.
Employee agrees that all Confidential Information and all records, documents and materials relating to all Confidential Information (including all copies thereof) shall be and remain the sole and exclusive property of a Banking Organization, and upon Employee’s termination of employment, all such Confidential Information, whether in paper or electronic form, shall be returned to a Financial Institution in good condition, without Employee retaining a copy thereof, including, but not limited to, retaining an electronic copy on any electronic device regardless of whether such device is owned by Employee. At a Financial Institution’s request, Employee shall provide written verification, under the penalties for perjury, of his/her compliance with this covenant.
5. Non-Solicitation of Customers and Potential Customers. Employee acknowledges and agrees that by virtue of Employee’s position with a Banking Organization, Employee has or will have advantageous familiarity and personal contacts with Customers and Potential Customers and will have advantageous familiarity with the business operations and affairs of a Banking Organization. Employee further acknowledges and agrees that Employee has been or will be placed in a position that, were Employee to leave a Financial Institution to compete with the business of a Banking Organization, such entity from which the Employee departed would, upon violation of this Agreement, suffer irreparable harm and financial loss, as well as lost goodwill and Confidential Information. Therefore, in consideration of the covenants of all Financial Institutions contained herein, Employee agrees that during Employee’s employment with a Financial Institution, and for a period of one (1) year immediately following the termination of Employee’s employment with a Financial Institution (“Restriction Period”), for whatever reason and regardless of how Employee’s employment was terminated, Employee shall not, directly or indirectly (including, but not limited to, through other individuals, any partnership, corporation or business entity in which Employee has an ownership interest or serves as an officer, employee, independent contractor, representative, agent or consultant), either for Employee’s own benefit or the benefit of any other Person:
a. Solicit, divert, or take away (or attempt to Solicit, divert or take away) any Banking and Financial Services to or from any Customer or Potential Customer; or
b. advise, persuade or induce (or attempt to advise, persuade or induce) any Customer or Potential Customer to terminate, reduce, limit, or change the Customer’s services or business relationship, or the Potential Customer’s contemplated services or business relationship, with a Financial Institution; or
c. directly provide Banking and Financial Services to, or directly accept Banking and Financial Services from, any Customer or Potential Customer.
This Agreement is not intended to prevent Employee from accepting employment with an organization that competes with the Banking Organizations by offering Banking and Financial Services to Customers or Potential Customers. The Parties acknowledge that Employee may be associated with such an Organization and that such association may place Employee in a senior or supervisory role to those in the organization that have contact with Customers or Potential Customers. Employee shall not be in violation of this Agreement merely by engaging in such a role, which may include:
a. supervising those who provide Banking and Financial Services to Customers or Potential Customers;
b. engaging in credit review, underwriting, loan approval, or financial analysis of a Customer or Potential Customer’s business as a part of a supervisory or management role, so long as such activity does not require the disclosure of Confidential Information, direct contact with the Customer or Potential Customer, or the disclosure of Employee’s role to the Customer or Potential Customer;
c. performing or supervising those that perform data processing, accounting, rate review, document review or similar “back room” services related to a Customer or Potential Customer so long as the services do not require the disclosure of Confidential Information or contact with the Customer or Potential Customer.
6. Non-Solicitation of Employees and Others. In consideration of the covenants of all Financial Institutions contained herein, Employee agrees that during Employee’s employment with a Financial Institution, and for a period of two (2) years immediately following the termination of Employee’s employment with a Financial Institution, for whatever reason and regardless of how Employee’s employment was terminated, Employee shall not, directly or indirectly (including, but not limited to, through other individuals, any partnership, corporation or business entity in which Employee has an ownership interest or serves as an officer, employee, independent contractor, representative, agent or consultant), either for Employee’s own benefit or the benefit of any other Person:
c. Solicit, entice or persuade (or attempt to Solicit, entice or persuade) any Employee to terminate his or her employment with a Banking Organization, or offer or provide employment (whether such employment is with Employee or any other Person) either on a full-time or part-time, consulting or Independent Contractor basis; or
d. Solicit, entice or persuade (or attempt to Solicit, entice or persuade) any Independent Contractors or Agents to terminate their contract or relationship with a Banking Organization or discontinue providing services to a Banking Organization and/or Customers; or
e. Solicit, entice or persuade (or attempt to Solicit, entice or persuade) any suppliers, vendors or others who were supplying services or goods to a Banking Organization during the one year period prior to Employee’s termination, to terminate, reduce, limit or change their business or relationship with a Banking Organization.
7. Tolling of Covenants. Employee acknowledges that a Banking Organization is entitled to the full post-termination restrictions on the activities set forth in Sections 5 and 6, as applicable. Therefore, in the event any of the provisions of these Sections are breached by Employee, the commencement of the applicable post-termination restriction will not begin until Employee is in full compliance with Section 5 and/or 6.
8. Severability/Blue Pencil. Each of the provisions of this Agreement, including, but not limited to, the restrictive covenants in Sections 5 and 6, are distinct and severable, notwithstanding that the covenants may be set forth in one section for convenience. If any provision of this Agreement shall be determined to be invalid, illegal or unenforceable in whole or in part, for any reason, neither the validity of the remaining part of such provision nor the validity of any other provision of this Agreement shall in any way be affected. Should any particular restrictive covenant, provision or clause of this Agreement be held unreasonable or unenforceable for any reason, including without limitation, the time period, geographic area and/or scope of activity covered by such covenant, provision or clause, the parties acknowledge and agree that such covenant, provision or clause shall be given effect and enforce to whatever extent would be
reasonable and enforceable under applicable law. The parties expressly authorize a court of competent jurisdiction to modify or revise such provision to limit the covenants to cover the maximum period of time, range of activities or other restrictions as would be enforceable under Indiana law.
9. Available Relief. Employee agrees that a Banking Organization, or its successor or assigns, will suffer irreparable damage and injury and will not have an adequate remedy at law in the event of any breach by Employee of any provision of Sections 4, 5 or 6, herein. Accordingly, in the event of a breach or of a threatened or attempted breach by Employee of Sections 4, 5, or 6, in addition to all other remedies to which a Banking Organization is entitled under law, in equity, or otherwise (including, but not limited to, monetary damages), a Banking Organization or its assigns and successors, shall be entitled to a temporary restraining order and/or preliminary or permanent injunction (without the necessity of showing any actual damage) or a decree of specific performance and no bond or other security shall be required in that connection.
10. Enforcement/Attorneys’ Fees. In any action that is brought to enforce or interpret this Agreement, the prevailing party or its assigns and successors, shall be entitled to recover their reasonable attorneys’ and paralegal fees and expenses incurred in connection therewith. If a Banking Organization or its assigns and successors, institute any action or proceeding to enforce the provisions of this Agreement, Employee hereby waives all claims or defenses that a Banking Organization or its assigns and successors, have an adequate remedy at law, and Employee shall not urge in any such action or proceeding the claim or defense that such a remedy at law exists.
11. Assignments; Successors and Assigns. The rights and obligations of Employee hereunder are not assignable or delegable by Employee, and any prohibited assignment or delegation will be null and void. The Banking Organization may, without the consent of the Employee, assign this Agreement to any successor or in connection with any merger, consolidation, share exchange, combination, sale of stock or assets or similar transaction. The provisions hereof shall inure to the benefit of and be binding upon the successors and assigns of a Banking Organization.
12. Governing Law. This Agreement shall be interpreted under, subject to and governed by the laws of the State of Indiana, without consideration of the choice of law principles thereof, and all questions concerning its validity, construction and administration shall be determined in accordance with Indiana law.
13. Entire Agreement/Modification/Waiver. This Agreement constitutes the entire agreement among the parties relating to the subject matter hereof and expressly supersedes any prior agreements between the parties relating to the subject matter hereof. This Agreement shall not be terminated, amended or modified without the prior written consent of the Bank’s President and Chief Executive Officer and Employee. No failure or delay by a Banking Organization in exercising any right or remedy under this Agreement shall operate as a waiver thereof, nor shall any waiver by a Banking Organization under this Agreement operate or be construed as a continuing waiver or a waiver of any subsequent breach or noncompliance hereunder. No single or partial exercise of any right or remedy by a Banking Organization shall preclude any other or further exercise thereof or the exercise of any other right or remedy. Any waiver by a Banking Organization under this Agreement shall be in writing and signed by the Bank’s President and Chief Executive Officer. A waiver shall operate only as to the specific term or condition waived and will not constitute a waiver for the future or act on anything other than that which is specifically waived.
14. “No-Defense” Provision. The covenants set forth in this Agreement are essential terms and conditions to a Banking Organization employing or continuing to employ Employee, and shall be construed as independent of any other obligations or agreements between Employee and a Banking Organization. The existence of any claim or cause of action Employee may have against a Banking Organization, including, but not limited to, the alleged material breach by a Banking Organization of any agreement with Employee, shall not constitute a defense to the enforcement by a Banking Organization of the covenants and obligations in this Agreement and shall not relieve Employee of his or her obligations under this Agreement.
15. Jurisdiction and Venue. The parties agree that all suits, actions, proceedings, litigation, disputes, or claims relating to or arising out of this Agreement shall be filed and tried in the Superior or Circuit Court, as appropriate, of Vigo County, Indiana, or the United States District Court for the Southern District of Indiana, Terre Haute Division. In this regard, the parties hereby: (a) agree that venue shall be such stated courts; (b) irrevocably consent to service of process and to the jurisdiction and venue of such courts; and (c) irrevocably waive any claim of inconvenient forum if any such suit, claim, proceeding, litigation, dispute, or claim has been filed, brought, or made in any of such courts.
16. Construction. This Agreement is the result of negotiations between the parties, and no party shall be deemed to be the drafter of this Agreement; accordingly, this Agreement shall be interpreted and construed without any presumption or inference based upon or against the party causing this Agreement to be prepared. The language of this Agreement shall in all cases be construed as a whole, according to its fair meaning and not strictly for or against any party.
17. Review and Consultation. Employee acknowledges and agrees that he/she has read this Agreement in its entirety prior to executing it, understands the provisions and effects of this Agreement, and has consulted with or had the opportunity to consult with an attorney or other advisers as he/she deemed appropriate in connection with the execution of this Agreement.
18. Section Headings. Section headings are inserted into this Agreement for convenience only and shall not affect any construction or interpretation of this Agreement.
19. Reasonableness. Employee agrees and acknowledges that the covenants, restrictions and obligations set forth in this Agreement, including Sections 5 and 6, are reasonable and necessary to protect a Banking Organization. Employee agrees that the covenants, restrictions and obligations will not affect Employee’s ability to make a living.
20. Counterparts. This Agreement may be executed in any number of identical counterparts, each of which shall be deemed a duplicate original but all of which shall constitute one and the same agreement. The parties agree that signatures transmitted by facsimile or other electronic means are acceptable the same as original signatures for the execution of the Agreement.
21. Miscellaneous. Any change in Employee’s duties, responsibilities, title, position, compensation, or status, with a Financial Institution will not affect the validity or enforceability of this Agreement.
22. Representations. Employee represents and warrants that he/she is not a party to an agreement with his or her prior employer(s) (other than Heritage or HopFed) or any other Person that prohibits Solicitation of business or competing with that employer or other Person. Employee affirms and represents that performance of his/her job duties and responsibilities for a Financial Institution does not, and will not, breach any agreement or covenant not to Solicit business, compete in business, or keep in confidence proprietary or confidential information acquired in confidence or in trust prior to Employee’s employment with a Financial Institution. Employee further represents that he/she has not retained any documents or information relating to Employee’s prior employers (other than Heritage or HopFed) that may be considered confidential or proprietary information and that Employee has not disclosed or used, and will not disclose or use, any information relating to his or her prior employer(s) in connection with Employee’s employment with a Financial Institution.
23. Return of Property. Upon termination of Employee’s employment, Employee shall immediately return to the Bank (if subsequent to the Effective Time) or Heritage (if prior to the Effective Time), all Banking Organizations documents and property, including, but not limited to, Confidential Information, computer discs, manuals, reports, files, memoranda, records, door and file keys, passwords and access codes, and any other physical or tangible things that Employee received, prepared, or helped prepare in connection with the Employee’s employment, and Employee shall not retain any copies, duplicates, reproductions or excerpts thereof. At the Bank’s or Heritage’s request, Employee shall provide written verification under the penalties for perjury of his/her compliance with this covenant.
24. Survival. Except as set forth below, the covenants in Sections 4, 5, 6 and 23 shall survive the termination of Employee’s employment with a Financial Institution regardless of the reason for termination. If the Merger is not consummated and the Merger Agreement is terminated, Sections 4, 5, 6 and 23 shall survive with respect to First Financial and the Bank, but shall not survive with respect to HopFed or Heritage.
[Signature Page to Follow]
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date indicated below.
FIRST FINANCIAL CORPORATION
By: /s/ Norman L. Lowery Date: January 7, 2019
Printed Name: Norman L. Lowery
Title: President & CEO
FIRST FINANCIAL BANK, N.A.
By: /s/ Norman L. Lowery Date: January 7, 2019
Printed Name: Norman L. Lowery
Title: President & CEO
HOPFED BANCORP, INC.
By: /s/ John E. Peck Date: January 7, 2019
Printed Name: John E. Peck
Title: President/CEO
HERITAGE BANK USA, INC.
By: /s/ John E. Peck Date: January 7, 2019
Printed Name: John E. Peck
Title: President/CEO
EMPLOYEE
Printed Name: Billy C. Duvall Date: January 7, 2019
Signature: /s/ Billy C. Duvall
| Not mentioned |
548_nda-13 | 548_nda-13_0 | Q: Receiving Party may acquire information similar to Confidential Information from a third party.
Text: Exhibit 10.8
NON-DISCLOSURE AND NON-SOLICITATION AGREEMENT
THIS NON-DISCLOSURE AND NON-SOLICITATION AGREEMENT (“Agreement”) is made and entered into, effective as of the date first written below, by and among First Financial Corporation (“First Financial”), First Financial Bank, N.A. (“Bank”), a wholly-owned subsidiary of First Financial, HopFed Bancorp, Inc. (“HopFed”), Heritage Bank USA, Inc., (“Heritage”), a wholly-owned subsidiary of HopFed, and Billy C. Duvall (“Employee”). “Banking Organization” shall mean First Financial, the Bank, HopFed, and/or Heritage. “Financial Institution” shall mean the Bank and/or Heritage. First Financial, the Bank, HopFed, Heritage and Employee may be collectively referenced as the “parties” or individually as a “party.”
WHEREAS, pursuant to that certain Agreement and Plan of Merger, dated January 7, 2019, by and between HopFed and First Financial (the “Merger Agreement”), HopFed shall be merged with and into First Financial (the “Merger”) effective as of the date and time provided in the Merger Agreement (the “Effective Time”); and
WHEREAS, Heritage will be merged into the Bank at the Effective Time or shortly thereafter; and
WHEREAS, Employee is currently an employee of Heritage and the Bank intends to offer employment to the Employee as an at-will employee to provide services for and on behalf of the Bank immediately upon the Effective Time;
WHEREAS, as a result of employment with Heritage up to the Effective Time and with the Bank thereafter, Employee had, has and will have access to Confidential Information (as defined below) and may have acquired or will acquire knowledge regarding Confidential Information, including, but not limited to, information regarding Customers or Potential Customers (as defined below), and a Banking Organization could be harmed if such Confidential Information were to be used, divulged or become known to any competitor of a Banking Organization or to any other Person (as defined below) or to any entity outside of a Banking Organization;
WHEREAS, Employee has developed or may develop contacts and business relationships with Customers or Potential Customers which could be used to the detriment of a Banking Organization and/or to solicit employees away from a Banking Organization; and
WHEREAS, each Banking Organization desires reasonable protection of its respective confidential business and customer information which such Banking Organization has developed and will develop over the years at substantial expense.
NOW, THEREFORE, the parties incorporate the above recitals, and in consideration of the mutual promises, covenants and agreements made herein, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Consideration/At-Will Employment.
a. This Agreement neither constitutes an employment contract or agreement to Employee for a stated period of time, nor does it alter Employee’s existing employment status.
b. In consideration of Employee’s promises, covenants and agreements set forth in this Agreement, (i) as of the date of this Agreement and up to the Effective Time Heritage shall maintain Employee’s employment with the compensation and benefits commensurate therewith, and (ii) effective as of the Effective Time, the Bank shall offer or maintain Employee’s employment as an at-will employee with the compensation and benefits commensurate therewith. For avoidance of doubt, following the Effective Time, Bank or Employee can terminate the employment at any time, with or without cause, and with or without prior notice. Employee understands and agrees, upon the Effective Time, that he/she will be an at-will employee of Bank and that this Agreement does not change or affect Employee’s employee-at-will status.
2. Duties. Employee shall devote his/her full working time and attention to the performance of those services for the Banking Organization which are assigned to him/her from time to time and to perform such services in a faithful, honest and diligent manner and in the best interest of such Banking Organization.
3. Definitions of Key Terms.
a. “Banking and Financial Services” shall mean those banking and related financial services of a Banking Organization or subsidiary thereof, including but not limited to, checking and savings accounts, health savings accounts, money market accounts, loans, credit cards, cash management services, lines of credit, investment services (such as IRAs, college savings plans, estate planning, investment planning, business planning), and trust services, provided during any period in which Employee served or will serve in any capacity for a Financial Institution and all banking and related financial services substantially similar to such banking and related financial services.
b. “Confidential Information” shall mean any and all materials, records, data, documents, lists, writings, and information (whether in writing, printed, electronically stored, computerized, on disk or otherwise, including, but not limited to, all copies, summaries, analyses, drafts, and extracts) relating or referring in any manner to trade secrets (as currently defined under applicable law, including, but not limited to, the Indiana Uniform Trade Secrets Act and any amendments or successor statutes) of a Banking Organization, as well as other non-public financial or proprietary information of a Banking Organization including, but not limited to, business reports, business plans, projections, income statements, profit and loss statements, business strategies and/or strategic plans, internal audits, sales information, sales techniques, business costs, product pricing, budgets, research and development, intellectual property, software and/or computer programs, marketing strategies or ideas, marketing plans or materials, business development plans or strategies, records or information relating to customers or account holders, customer lists, inventions, and processes, systems, methods, documentation or devices which are unique or proprietary to the business of or services or products of a Banking Organization. Confidential Information shall not include information that: (i) is or becomes readily or publicly available, not as a result of a violation of this Agreement or other obligation of confidence, directly or indirectly, of the disclosing party; (ii) is developed by other parties, including, but not limited to, subsequent employers of the Employee, independent of the knowledge or resources of the Employee based upon his or her prior access to a Banking Organization’s Confidential Information; (iii) is independently developed after the Employee’s termination of employment without reference to or use of the Confidential Information or materials based thereon; (iv) is based on the Employee’s personal experience, knowledge, enterprise and expertise in the delivery of Banking and Financial Services and which is general knowledge concerning the industry, not specific to a Banking Organization; or (v) is disclosed pursuant to the requirements of a court, administrative agency or other governmental agency.
c. “Customers” or “Customer” shall mean any Person to whom a Banking Organization rendered or provided Banking and Financial Services at any time during the one-year period prior to Employee’s termination of employment with a Financial Institution: (i) with whom Employee had any material contact (either directly or indirectly); (ii) which Employee managed, had responsibility for or regularly serviced while employed by the Financial Institution, provided, however, this shall not be construed to include supervising those who have such a relationship to the Customer; or, (iii) about which Employee obtained Confidential Information.
d. “Employees,” “Agents,” and “Independent Contractors” shall mean any and all persons employed or contracted by a Banking Organization or who were employed or contracted by a Banking Organization, as an employee, agent or independent contractor, within the six (6) month period prior to Employee’s termination of employment with either Financial Institution.
e. “Person” shall mean any individual, partnership, corporation, organization, bank, credit union, firm, association, limited liability company, trust, joint venture, company or other entity, body, agency or department thereof.
f. “Potential Customer” shall mean any Person that Employee directly solicited, targeted or specifically identified as a prospective or potential customer, or about which Employee obtained information on behalf of a Banking Organization for purposes of directly soliciting, targeting or specifically identifying as a prospective or potential customer, during the one (1) year period prior to Employee’s termination of employment with either Financial Institution.
g. “Solicit”, “Solicited” or “Solicitation” means any direct or indirect communication of any kind whatsoever, regardless of by whom initiated, inviting, advising, inducing, encouraging, enticing, or requesting either expressly or implicitly, any Person, in any manner, to take or refrain from taking action, provided, however, this definition does not include communications initiated by Customers or Potential Customers of their own initiative, without prompting or encouragement by Employee or anyone acting on Employee’s behalf.
4. Non-Disclosure of Confidential Information. During the course of Employee’s employment with a Financial Institution, Employee agrees that Employee has or will continue to become knowledgeable about, or come to be in possession of, Confidential Information. If such Confidential Information were to be divulged or become known to any competitor of a Banking Organization, or to any other Person outside of a Banking Organization, or if Employee were to consent to be employed by any competitor of a Banking Organization, or to engage in competition with a Banking Organization, such Banking Organization will be harmed. In addition, Employee has or may develop relationships with Customers or Potential Customers so that the Confidential Information could be used to Solicit the business of such Customer or Potential Customer away from a Banking Organization.
Employee shall not, directly or indirectly, use any Confidential Information for any purpose other than the benefit of a Banking Organization, and shall not directly or indirectly, disclose, communicate, deliver, exhibit or provide any Confidential Information to any Person, except other Employees or Agents of a Banking Organization who have a need to know such Confidential Information for a proper corporate or business purpose, as required in the normal course of Employee’s service as an employee. Nothing in this Section 4, or any other provision of this Agreement, shall be construed to prohibit Employee from reporting conduct to, providing truthful information to, or participating in any investigation or proceeding brought or conducted by any federal or state government agency or self-regulatory organization.
Employee specifically acknowledges that the Confidential Information, whether reduced to writing or maintained electronically or in the mind or memory of Employee and, whether compiled by a Banking Organization and/or the Employee, derives independent economic value from not being readily known to or ascertainable by proper means by others who can obtain economic value from its disclosure or use, that reasonable efforts have been put forth by each Banking Organization to maintain the secrecy of such information, that such information is the sole property of such Banking Organization and that any retention and/or use of such information during or after Employee’s employment with either Financial Institution (except in the course of performing the Employee’s duties of employment with a Financial Institution and except as otherwise set forth above) constitutes a misappropriation of a Banking Organization’s Confidential Information.
Employee agrees that all Confidential Information and all records, documents and materials relating to all Confidential Information (including all copies thereof) shall be and remain the sole and exclusive property of a Banking Organization, and upon Employee’s termination of employment, all such Confidential Information, whether in paper or electronic form, shall be returned to a Financial Institution in good condition, without Employee retaining a copy thereof, including, but not limited to, retaining an electronic copy on any electronic device regardless of whether such device is owned by Employee. At a Financial Institution’s request, Employee shall provide written verification, under the penalties for perjury, of his/her compliance with this covenant.
5. Non-Solicitation of Customers and Potential Customers. Employee acknowledges and agrees that by virtue of Employee’s position with a Banking Organization, Employee has or will have advantageous familiarity and personal contacts with Customers and Potential Customers and will have advantageous familiarity with the business operations and affairs of a Banking Organization. Employee further acknowledges and agrees that Employee has been or will be placed in a position that, were Employee to leave a Financial Institution to compete with the business of a Banking Organization, such entity from which the Employee departed would, upon violation of this Agreement, suffer irreparable harm and financial loss, as well as lost goodwill and Confidential Information. Therefore, in consideration of the covenants of all Financial Institutions contained herein, Employee agrees that during Employee’s employment with a Financial Institution, and for a period of one (1) year immediately following the termination of Employee’s employment with a Financial Institution (“Restriction Period”), for whatever reason and regardless of how Employee’s employment was terminated, Employee shall not, directly or indirectly (including, but not limited to, through other individuals, any partnership, corporation or business entity in which Employee has an ownership interest or serves as an officer, employee, independent contractor, representative, agent or consultant), either for Employee’s own benefit or the benefit of any other Person:
a. Solicit, divert, or take away (or attempt to Solicit, divert or take away) any Banking and Financial Services to or from any Customer or Potential Customer; or
b. advise, persuade or induce (or attempt to advise, persuade or induce) any Customer or Potential Customer to terminate, reduce, limit, or change the Customer’s services or business relationship, or the Potential Customer’s contemplated services or business relationship, with a Financial Institution; or
c. directly provide Banking and Financial Services to, or directly accept Banking and Financial Services from, any Customer or Potential Customer.
This Agreement is not intended to prevent Employee from accepting employment with an organization that competes with the Banking Organizations by offering Banking and Financial Services to Customers or Potential Customers. The Parties acknowledge that Employee may be associated with such an Organization and that such association may place Employee in a senior or supervisory role to those in the organization that have contact with Customers or Potential Customers. Employee shall not be in violation of this Agreement merely by engaging in such a role, which may include:
a. supervising those who provide Banking and Financial Services to Customers or Potential Customers;
b. engaging in credit review, underwriting, loan approval, or financial analysis of a Customer or Potential Customer’s business as a part of a supervisory or management role, so long as such activity does not require the disclosure of Confidential Information, direct contact with the Customer or Potential Customer, or the disclosure of Employee’s role to the Customer or Potential Customer;
c. performing or supervising those that perform data processing, accounting, rate review, document review or similar “back room” services related to a Customer or Potential Customer so long as the services do not require the disclosure of Confidential Information or contact with the Customer or Potential Customer.
6. Non-Solicitation of Employees and Others. In consideration of the covenants of all Financial Institutions contained herein, Employee agrees that during Employee’s employment with a Financial Institution, and for a period of two (2) years immediately following the termination of Employee’s employment with a Financial Institution, for whatever reason and regardless of how Employee’s employment was terminated, Employee shall not, directly or indirectly (including, but not limited to, through other individuals, any partnership, corporation or business entity in which Employee has an ownership interest or serves as an officer, employee, independent contractor, representative, agent or consultant), either for Employee’s own benefit or the benefit of any other Person:
c. Solicit, entice or persuade (or attempt to Solicit, entice or persuade) any Employee to terminate his or her employment with a Banking Organization, or offer or provide employment (whether such employment is with Employee or any other Person) either on a full-time or part-time, consulting or Independent Contractor basis; or
d. Solicit, entice or persuade (or attempt to Solicit, entice or persuade) any Independent Contractors or Agents to terminate their contract or relationship with a Banking Organization or discontinue providing services to a Banking Organization and/or Customers; or
e. Solicit, entice or persuade (or attempt to Solicit, entice or persuade) any suppliers, vendors or others who were supplying services or goods to a Banking Organization during the one year period prior to Employee’s termination, to terminate, reduce, limit or change their business or relationship with a Banking Organization.
7. Tolling of Covenants. Employee acknowledges that a Banking Organization is entitled to the full post-termination restrictions on the activities set forth in Sections 5 and 6, as applicable. Therefore, in the event any of the provisions of these Sections are breached by Employee, the commencement of the applicable post-termination restriction will not begin until Employee is in full compliance with Section 5 and/or 6.
8. Severability/Blue Pencil. Each of the provisions of this Agreement, including, but not limited to, the restrictive covenants in Sections 5 and 6, are distinct and severable, notwithstanding that the covenants may be set forth in one section for convenience. If any provision of this Agreement shall be determined to be invalid, illegal or unenforceable in whole or in part, for any reason, neither the validity of the remaining part of such provision nor the validity of any other provision of this Agreement shall in any way be affected. Should any particular restrictive covenant, provision or clause of this Agreement be held unreasonable or unenforceable for any reason, including without limitation, the time period, geographic area and/or scope of activity covered by such covenant, provision or clause, the parties acknowledge and agree that such covenant, provision or clause shall be given effect and enforce to whatever extent would be
reasonable and enforceable under applicable law. The parties expressly authorize a court of competent jurisdiction to modify or revise such provision to limit the covenants to cover the maximum period of time, range of activities or other restrictions as would be enforceable under Indiana law.
9. Available Relief. Employee agrees that a Banking Organization, or its successor or assigns, will suffer irreparable damage and injury and will not have an adequate remedy at law in the event of any breach by Employee of any provision of Sections 4, 5 or 6, herein. Accordingly, in the event of a breach or of a threatened or attempted breach by Employee of Sections 4, 5, or 6, in addition to all other remedies to which a Banking Organization is entitled under law, in equity, or otherwise (including, but not limited to, monetary damages), a Banking Organization or its assigns and successors, shall be entitled to a temporary restraining order and/or preliminary or permanent injunction (without the necessity of showing any actual damage) or a decree of specific performance and no bond or other security shall be required in that connection.
10. Enforcement/Attorneys’ Fees. In any action that is brought to enforce or interpret this Agreement, the prevailing party or its assigns and successors, shall be entitled to recover their reasonable attorneys’ and paralegal fees and expenses incurred in connection therewith. If a Banking Organization or its assigns and successors, institute any action or proceeding to enforce the provisions of this Agreement, Employee hereby waives all claims or defenses that a Banking Organization or its assigns and successors, have an adequate remedy at law, and Employee shall not urge in any such action or proceeding the claim or defense that such a remedy at law exists.
11. Assignments; Successors and Assigns. The rights and obligations of Employee hereunder are not assignable or delegable by Employee, and any prohibited assignment or delegation will be null and void. The Banking Organization may, without the consent of the Employee, assign this Agreement to any successor or in connection with any merger, consolidation, share exchange, combination, sale of stock or assets or similar transaction. The provisions hereof shall inure to the benefit of and be binding upon the successors and assigns of a Banking Organization.
12. Governing Law. This Agreement shall be interpreted under, subject to and governed by the laws of the State of Indiana, without consideration of the choice of law principles thereof, and all questions concerning its validity, construction and administration shall be determined in accordance with Indiana law.
13. Entire Agreement/Modification/Waiver. This Agreement constitutes the entire agreement among the parties relating to the subject matter hereof and expressly supersedes any prior agreements between the parties relating to the subject matter hereof. This Agreement shall not be terminated, amended or modified without the prior written consent of the Bank’s President and Chief Executive Officer and Employee. No failure or delay by a Banking Organization in exercising any right or remedy under this Agreement shall operate as a waiver thereof, nor shall any waiver by a Banking Organization under this Agreement operate or be construed as a continuing waiver or a waiver of any subsequent breach or noncompliance hereunder. No single or partial exercise of any right or remedy by a Banking Organization shall preclude any other or further exercise thereof or the exercise of any other right or remedy. Any waiver by a Banking Organization under this Agreement shall be in writing and signed by the Bank’s President and Chief Executive Officer. A waiver shall operate only as to the specific term or condition waived and will not constitute a waiver for the future or act on anything other than that which is specifically waived.
14. “No-Defense” Provision. The covenants set forth in this Agreement are essential terms and conditions to a Banking Organization employing or continuing to employ Employee, and shall be construed as independent of any other obligations or agreements between Employee and a Banking Organization. The existence of any claim or cause of action Employee may have against a Banking Organization, including, but not limited to, the alleged material breach by a Banking Organization of any agreement with Employee, shall not constitute a defense to the enforcement by a Banking Organization of the covenants and obligations in this Agreement and shall not relieve Employee of his or her obligations under this Agreement.
15. Jurisdiction and Venue. The parties agree that all suits, actions, proceedings, litigation, disputes, or claims relating to or arising out of this Agreement shall be filed and tried in the Superior or Circuit Court, as appropriate, of Vigo County, Indiana, or the United States District Court for the Southern District of Indiana, Terre Haute Division. In this regard, the parties hereby: (a) agree that venue shall be such stated courts; (b) irrevocably consent to service of process and to the jurisdiction and venue of such courts; and (c) irrevocably waive any claim of inconvenient forum if any such suit, claim, proceeding, litigation, dispute, or claim has been filed, brought, or made in any of such courts.
16. Construction. This Agreement is the result of negotiations between the parties, and no party shall be deemed to be the drafter of this Agreement; accordingly, this Agreement shall be interpreted and construed without any presumption or inference based upon or against the party causing this Agreement to be prepared. The language of this Agreement shall in all cases be construed as a whole, according to its fair meaning and not strictly for or against any party.
17. Review and Consultation. Employee acknowledges and agrees that he/she has read this Agreement in its entirety prior to executing it, understands the provisions and effects of this Agreement, and has consulted with or had the opportunity to consult with an attorney or other advisers as he/she deemed appropriate in connection with the execution of this Agreement.
18. Section Headings. Section headings are inserted into this Agreement for convenience only and shall not affect any construction or interpretation of this Agreement.
19. Reasonableness. Employee agrees and acknowledges that the covenants, restrictions and obligations set forth in this Agreement, including Sections 5 and 6, are reasonable and necessary to protect a Banking Organization. Employee agrees that the covenants, restrictions and obligations will not affect Employee’s ability to make a living.
20. Counterparts. This Agreement may be executed in any number of identical counterparts, each of which shall be deemed a duplicate original but all of which shall constitute one and the same agreement. The parties agree that signatures transmitted by facsimile or other electronic means are acceptable the same as original signatures for the execution of the Agreement.
21. Miscellaneous. Any change in Employee’s duties, responsibilities, title, position, compensation, or status, with a Financial Institution will not affect the validity or enforceability of this Agreement.
22. Representations. Employee represents and warrants that he/she is not a party to an agreement with his or her prior employer(s) (other than Heritage or HopFed) or any other Person that prohibits Solicitation of business or competing with that employer or other Person. Employee affirms and represents that performance of his/her job duties and responsibilities for a Financial Institution does not, and will not, breach any agreement or covenant not to Solicit business, compete in business, or keep in confidence proprietary or confidential information acquired in confidence or in trust prior to Employee’s employment with a Financial Institution. Employee further represents that he/she has not retained any documents or information relating to Employee’s prior employers (other than Heritage or HopFed) that may be considered confidential or proprietary information and that Employee has not disclosed or used, and will not disclose or use, any information relating to his or her prior employer(s) in connection with Employee’s employment with a Financial Institution.
23. Return of Property. Upon termination of Employee’s employment, Employee shall immediately return to the Bank (if subsequent to the Effective Time) or Heritage (if prior to the Effective Time), all Banking Organizations documents and property, including, but not limited to, Confidential Information, computer discs, manuals, reports, files, memoranda, records, door and file keys, passwords and access codes, and any other physical or tangible things that Employee received, prepared, or helped prepare in connection with the Employee’s employment, and Employee shall not retain any copies, duplicates, reproductions or excerpts thereof. At the Bank’s or Heritage’s request, Employee shall provide written verification under the penalties for perjury of his/her compliance with this covenant.
24. Survival. Except as set forth below, the covenants in Sections 4, 5, 6 and 23 shall survive the termination of Employee’s employment with a Financial Institution regardless of the reason for termination. If the Merger is not consummated and the Merger Agreement is terminated, Sections 4, 5, 6 and 23 shall survive with respect to First Financial and the Bank, but shall not survive with respect to HopFed or Heritage.
[Signature Page to Follow]
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date indicated below.
FIRST FINANCIAL CORPORATION
By: /s/ Norman L. Lowery Date: January 7, 2019
Printed Name: Norman L. Lowery
Title: President & CEO
FIRST FINANCIAL BANK, N.A.
By: /s/ Norman L. Lowery Date: January 7, 2019
Printed Name: Norman L. Lowery
Title: President & CEO
HOPFED BANCORP, INC.
By: /s/ John E. Peck Date: January 7, 2019
Printed Name: John E. Peck
Title: President/CEO
HERITAGE BANK USA, INC.
By: /s/ John E. Peck Date: January 7, 2019
Printed Name: John E. Peck
Title: President/CEO
EMPLOYEE
Printed Name: Billy C. Duvall Date: January 7, 2019
Signature: /s/ Billy C. Duvall
| Not mentioned |
548_nda-5 | 548_nda-5_0 | Q: Receiving Party may share some Confidential Information with some of Receiving Party's employees.
Text: Exhibit 10.8
NON-DISCLOSURE AND NON-SOLICITATION AGREEMENT
THIS NON-DISCLOSURE AND NON-SOLICITATION AGREEMENT (“Agreement”) is made and entered into, effective as of the date first written below, by and among First Financial Corporation (“First Financial”), First Financial Bank, N.A. (“Bank”), a wholly-owned subsidiary of First Financial, HopFed Bancorp, Inc. (“HopFed”), Heritage Bank USA, Inc., (“Heritage”), a wholly-owned subsidiary of HopFed, and Billy C. Duvall (“Employee”). “Banking Organization” shall mean First Financial, the Bank, HopFed, and/or Heritage. “Financial Institution” shall mean the Bank and/or Heritage. First Financial, the Bank, HopFed, Heritage and Employee may be collectively referenced as the “parties” or individually as a “party.”
WHEREAS, pursuant to that certain Agreement and Plan of Merger, dated January 7, 2019, by and between HopFed and First Financial (the “Merger Agreement”), HopFed shall be merged with and into First Financial (the “Merger”) effective as of the date and time provided in the Merger Agreement (the “Effective Time”); and
WHEREAS, Heritage will be merged into the Bank at the Effective Time or shortly thereafter; and
WHEREAS, Employee is currently an employee of Heritage and the Bank intends to offer employment to the Employee as an at-will employee to provide services for and on behalf of the Bank immediately upon the Effective Time;
WHEREAS, as a result of employment with Heritage up to the Effective Time and with the Bank thereafter, Employee had, has and will have access to Confidential Information (as defined below) and may have acquired or will acquire knowledge regarding Confidential Information, including, but not limited to, information regarding Customers or Potential Customers (as defined below), and a Banking Organization could be harmed if such Confidential Information were to be used, divulged or become known to any competitor of a Banking Organization or to any other Person (as defined below) or to any entity outside of a Banking Organization;
WHEREAS, Employee has developed or may develop contacts and business relationships with Customers or Potential Customers which could be used to the detriment of a Banking Organization and/or to solicit employees away from a Banking Organization; and
WHEREAS, each Banking Organization desires reasonable protection of its respective confidential business and customer information which such Banking Organization has developed and will develop over the years at substantial expense.
NOW, THEREFORE, the parties incorporate the above recitals, and in consideration of the mutual promises, covenants and agreements made herein, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Consideration/At-Will Employment.
a. This Agreement neither constitutes an employment contract or agreement to Employee for a stated period of time, nor does it alter Employee’s existing employment status.
b. In consideration of Employee’s promises, covenants and agreements set forth in this Agreement, (i) as of the date of this Agreement and up to the Effective Time Heritage shall maintain Employee’s employment with the compensation and benefits commensurate therewith, and (ii) effective as of the Effective Time, the Bank shall offer or maintain Employee’s employment as an at-will employee with the compensation and benefits commensurate therewith. For avoidance of doubt, following the Effective Time, Bank or Employee can terminate the employment at any time, with or without cause, and with or without prior notice. Employee understands and agrees, upon the Effective Time, that he/she will be an at-will employee of Bank and that this Agreement does not change or affect Employee’s employee-at-will status.
2. Duties. Employee shall devote his/her full working time and attention to the performance of those services for the Banking Organization which are assigned to him/her from time to time and to perform such services in a faithful, honest and diligent manner and in the best interest of such Banking Organization.
3. Definitions of Key Terms.
a. “Banking and Financial Services” shall mean those banking and related financial services of a Banking Organization or subsidiary thereof, including but not limited to, checking and savings accounts, health savings accounts, money market accounts, loans, credit cards, cash management services, lines of credit, investment services (such as IRAs, college savings plans, estate planning, investment planning, business planning), and trust services, provided during any period in which Employee served or will serve in any capacity for a Financial Institution and all banking and related financial services substantially similar to such banking and related financial services.
b. “Confidential Information” shall mean any and all materials, records, data, documents, lists, writings, and information (whether in writing, printed, electronically stored, computerized, on disk or otherwise, including, but not limited to, all copies, summaries, analyses, drafts, and extracts) relating or referring in any manner to trade secrets (as currently defined under applicable law, including, but not limited to, the Indiana Uniform Trade Secrets Act and any amendments or successor statutes) of a Banking Organization, as well as other non-public financial or proprietary information of a Banking Organization including, but not limited to, business reports, business plans, projections, income statements, profit and loss statements, business strategies and/or strategic plans, internal audits, sales information, sales techniques, business costs, product pricing, budgets, research and development, intellectual property, software and/or computer programs, marketing strategies or ideas, marketing plans or materials, business development plans or strategies, records or information relating to customers or account holders, customer lists, inventions, and processes, systems, methods, documentation or devices which are unique or proprietary to the business of or services or products of a Banking Organization. Confidential Information shall not include information that: (i) is or becomes readily or publicly available, not as a result of a violation of this Agreement or other obligation of confidence, directly or indirectly, of the disclosing party; (ii) is developed by other parties, including, but not limited to, subsequent employers of the Employee, independent of the knowledge or resources of the Employee based upon his or her prior access to a Banking Organization’s Confidential Information; (iii) is independently developed after the Employee’s termination of employment without reference to or use of the Confidential Information or materials based thereon; (iv) is based on the Employee’s personal experience, knowledge, enterprise and expertise in the delivery of Banking and Financial Services and which is general knowledge concerning the industry, not specific to a Banking Organization; or (v) is disclosed pursuant to the requirements of a court, administrative agency or other governmental agency.
c. “Customers” or “Customer” shall mean any Person to whom a Banking Organization rendered or provided Banking and Financial Services at any time during the one-year period prior to Employee’s termination of employment with a Financial Institution: (i) with whom Employee had any material contact (either directly or indirectly); (ii) which Employee managed, had responsibility for or regularly serviced while employed by the Financial Institution, provided, however, this shall not be construed to include supervising those who have such a relationship to the Customer; or, (iii) about which Employee obtained Confidential Information.
d. “Employees,” “Agents,” and “Independent Contractors” shall mean any and all persons employed or contracted by a Banking Organization or who were employed or contracted by a Banking Organization, as an employee, agent or independent contractor, within the six (6) month period prior to Employee’s termination of employment with either Financial Institution.
e. “Person” shall mean any individual, partnership, corporation, organization, bank, credit union, firm, association, limited liability company, trust, joint venture, company or other entity, body, agency or department thereof.
f. “Potential Customer” shall mean any Person that Employee directly solicited, targeted or specifically identified as a prospective or potential customer, or about which Employee obtained information on behalf of a Banking Organization for purposes of directly soliciting, targeting or specifically identifying as a prospective or potential customer, during the one (1) year period prior to Employee’s termination of employment with either Financial Institution.
g. “Solicit”, “Solicited” or “Solicitation” means any direct or indirect communication of any kind whatsoever, regardless of by whom initiated, inviting, advising, inducing, encouraging, enticing, or requesting either expressly or implicitly, any Person, in any manner, to take or refrain from taking action, provided, however, this definition does not include communications initiated by Customers or Potential Customers of their own initiative, without prompting or encouragement by Employee or anyone acting on Employee’s behalf.
4. Non-Disclosure of Confidential Information. During the course of Employee’s employment with a Financial Institution, Employee agrees that Employee has or will continue to become knowledgeable about, or come to be in possession of, Confidential Information. If such Confidential Information were to be divulged or become known to any competitor of a Banking Organization, or to any other Person outside of a Banking Organization, or if Employee were to consent to be employed by any competitor of a Banking Organization, or to engage in competition with a Banking Organization, such Banking Organization will be harmed. In addition, Employee has or may develop relationships with Customers or Potential Customers so that the Confidential Information could be used to Solicit the business of such Customer or Potential Customer away from a Banking Organization.
Employee shall not, directly or indirectly, use any Confidential Information for any purpose other than the benefit of a Banking Organization, and shall not directly or indirectly, disclose, communicate, deliver, exhibit or provide any Confidential Information to any Person, except other Employees or Agents of a Banking Organization who have a need to know such Confidential Information for a proper corporate or business purpose, as required in the normal course of Employee’s service as an employee. Nothing in this Section 4, or any other provision of this Agreement, shall be construed to prohibit Employee from reporting conduct to, providing truthful information to, or participating in any investigation or proceeding brought or conducted by any federal or state government agency or self-regulatory organization.
Employee specifically acknowledges that the Confidential Information, whether reduced to writing or maintained electronically or in the mind or memory of Employee and, whether compiled by a Banking Organization and/or the Employee, derives independent economic value from not being readily known to or ascertainable by proper means by others who can obtain economic value from its disclosure or use, that reasonable efforts have been put forth by each Banking Organization to maintain the secrecy of such information, that such information is the sole property of such Banking Organization and that any retention and/or use of such information during or after Employee’s employment with either Financial Institution (except in the course of performing the Employee’s duties of employment with a Financial Institution and except as otherwise set forth above) constitutes a misappropriation of a Banking Organization’s Confidential Information.
Employee agrees that all Confidential Information and all records, documents and materials relating to all Confidential Information (including all copies thereof) shall be and remain the sole and exclusive property of a Banking Organization, and upon Employee’s termination of employment, all such Confidential Information, whether in paper or electronic form, shall be returned to a Financial Institution in good condition, without Employee retaining a copy thereof, including, but not limited to, retaining an electronic copy on any electronic device regardless of whether such device is owned by Employee. At a Financial Institution’s request, Employee shall provide written verification, under the penalties for perjury, of his/her compliance with this covenant.
5. Non-Solicitation of Customers and Potential Customers. Employee acknowledges and agrees that by virtue of Employee’s position with a Banking Organization, Employee has or will have advantageous familiarity and personal contacts with Customers and Potential Customers and will have advantageous familiarity with the business operations and affairs of a Banking Organization. Employee further acknowledges and agrees that Employee has been or will be placed in a position that, were Employee to leave a Financial Institution to compete with the business of a Banking Organization, such entity from which the Employee departed would, upon violation of this Agreement, suffer irreparable harm and financial loss, as well as lost goodwill and Confidential Information. Therefore, in consideration of the covenants of all Financial Institutions contained herein, Employee agrees that during Employee’s employment with a Financial Institution, and for a period of one (1) year immediately following the termination of Employee’s employment with a Financial Institution (“Restriction Period”), for whatever reason and regardless of how Employee’s employment was terminated, Employee shall not, directly or indirectly (including, but not limited to, through other individuals, any partnership, corporation or business entity in which Employee has an ownership interest or serves as an officer, employee, independent contractor, representative, agent or consultant), either for Employee’s own benefit or the benefit of any other Person:
a. Solicit, divert, or take away (or attempt to Solicit, divert or take away) any Banking and Financial Services to or from any Customer or Potential Customer; or
b. advise, persuade or induce (or attempt to advise, persuade or induce) any Customer or Potential Customer to terminate, reduce, limit, or change the Customer’s services or business relationship, or the Potential Customer’s contemplated services or business relationship, with a Financial Institution; or
c. directly provide Banking and Financial Services to, or directly accept Banking and Financial Services from, any Customer or Potential Customer.
This Agreement is not intended to prevent Employee from accepting employment with an organization that competes with the Banking Organizations by offering Banking and Financial Services to Customers or Potential Customers. The Parties acknowledge that Employee may be associated with such an Organization and that such association may place Employee in a senior or supervisory role to those in the organization that have contact with Customers or Potential Customers. Employee shall not be in violation of this Agreement merely by engaging in such a role, which may include:
a. supervising those who provide Banking and Financial Services to Customers or Potential Customers;
b. engaging in credit review, underwriting, loan approval, or financial analysis of a Customer or Potential Customer’s business as a part of a supervisory or management role, so long as such activity does not require the disclosure of Confidential Information, direct contact with the Customer or Potential Customer, or the disclosure of Employee’s role to the Customer or Potential Customer;
c. performing or supervising those that perform data processing, accounting, rate review, document review or similar “back room” services related to a Customer or Potential Customer so long as the services do not require the disclosure of Confidential Information or contact with the Customer or Potential Customer.
6. Non-Solicitation of Employees and Others. In consideration of the covenants of all Financial Institutions contained herein, Employee agrees that during Employee’s employment with a Financial Institution, and for a period of two (2) years immediately following the termination of Employee’s employment with a Financial Institution, for whatever reason and regardless of how Employee’s employment was terminated, Employee shall not, directly or indirectly (including, but not limited to, through other individuals, any partnership, corporation or business entity in which Employee has an ownership interest or serves as an officer, employee, independent contractor, representative, agent or consultant), either for Employee’s own benefit or the benefit of any other Person:
c. Solicit, entice or persuade (or attempt to Solicit, entice or persuade) any Employee to terminate his or her employment with a Banking Organization, or offer or provide employment (whether such employment is with Employee or any other Person) either on a full-time or part-time, consulting or Independent Contractor basis; or
d. Solicit, entice or persuade (or attempt to Solicit, entice or persuade) any Independent Contractors or Agents to terminate their contract or relationship with a Banking Organization or discontinue providing services to a Banking Organization and/or Customers; or
e. Solicit, entice or persuade (or attempt to Solicit, entice or persuade) any suppliers, vendors or others who were supplying services or goods to a Banking Organization during the one year period prior to Employee’s termination, to terminate, reduce, limit or change their business or relationship with a Banking Organization.
7. Tolling of Covenants. Employee acknowledges that a Banking Organization is entitled to the full post-termination restrictions on the activities set forth in Sections 5 and 6, as applicable. Therefore, in the event any of the provisions of these Sections are breached by Employee, the commencement of the applicable post-termination restriction will not begin until Employee is in full compliance with Section 5 and/or 6.
8. Severability/Blue Pencil. Each of the provisions of this Agreement, including, but not limited to, the restrictive covenants in Sections 5 and 6, are distinct and severable, notwithstanding that the covenants may be set forth in one section for convenience. If any provision of this Agreement shall be determined to be invalid, illegal or unenforceable in whole or in part, for any reason, neither the validity of the remaining part of such provision nor the validity of any other provision of this Agreement shall in any way be affected. Should any particular restrictive covenant, provision or clause of this Agreement be held unreasonable or unenforceable for any reason, including without limitation, the time period, geographic area and/or scope of activity covered by such covenant, provision or clause, the parties acknowledge and agree that such covenant, provision or clause shall be given effect and enforce to whatever extent would be
reasonable and enforceable under applicable law. The parties expressly authorize a court of competent jurisdiction to modify or revise such provision to limit the covenants to cover the maximum period of time, range of activities or other restrictions as would be enforceable under Indiana law.
9. Available Relief. Employee agrees that a Banking Organization, or its successor or assigns, will suffer irreparable damage and injury and will not have an adequate remedy at law in the event of any breach by Employee of any provision of Sections 4, 5 or 6, herein. Accordingly, in the event of a breach or of a threatened or attempted breach by Employee of Sections 4, 5, or 6, in addition to all other remedies to which a Banking Organization is entitled under law, in equity, or otherwise (including, but not limited to, monetary damages), a Banking Organization or its assigns and successors, shall be entitled to a temporary restraining order and/or preliminary or permanent injunction (without the necessity of showing any actual damage) or a decree of specific performance and no bond or other security shall be required in that connection.
10. Enforcement/Attorneys’ Fees. In any action that is brought to enforce or interpret this Agreement, the prevailing party or its assigns and successors, shall be entitled to recover their reasonable attorneys’ and paralegal fees and expenses incurred in connection therewith. If a Banking Organization or its assigns and successors, institute any action or proceeding to enforce the provisions of this Agreement, Employee hereby waives all claims or defenses that a Banking Organization or its assigns and successors, have an adequate remedy at law, and Employee shall not urge in any such action or proceeding the claim or defense that such a remedy at law exists.
11. Assignments; Successors and Assigns. The rights and obligations of Employee hereunder are not assignable or delegable by Employee, and any prohibited assignment or delegation will be null and void. The Banking Organization may, without the consent of the Employee, assign this Agreement to any successor or in connection with any merger, consolidation, share exchange, combination, sale of stock or assets or similar transaction. The provisions hereof shall inure to the benefit of and be binding upon the successors and assigns of a Banking Organization.
12. Governing Law. This Agreement shall be interpreted under, subject to and governed by the laws of the State of Indiana, without consideration of the choice of law principles thereof, and all questions concerning its validity, construction and administration shall be determined in accordance with Indiana law.
13. Entire Agreement/Modification/Waiver. This Agreement constitutes the entire agreement among the parties relating to the subject matter hereof and expressly supersedes any prior agreements between the parties relating to the subject matter hereof. This Agreement shall not be terminated, amended or modified without the prior written consent of the Bank’s President and Chief Executive Officer and Employee. No failure or delay by a Banking Organization in exercising any right or remedy under this Agreement shall operate as a waiver thereof, nor shall any waiver by a Banking Organization under this Agreement operate or be construed as a continuing waiver or a waiver of any subsequent breach or noncompliance hereunder. No single or partial exercise of any right or remedy by a Banking Organization shall preclude any other or further exercise thereof or the exercise of any other right or remedy. Any waiver by a Banking Organization under this Agreement shall be in writing and signed by the Bank’s President and Chief Executive Officer. A waiver shall operate only as to the specific term or condition waived and will not constitute a waiver for the future or act on anything other than that which is specifically waived.
14. “No-Defense” Provision. The covenants set forth in this Agreement are essential terms and conditions to a Banking Organization employing or continuing to employ Employee, and shall be construed as independent of any other obligations or agreements between Employee and a Banking Organization. The existence of any claim or cause of action Employee may have against a Banking Organization, including, but not limited to, the alleged material breach by a Banking Organization of any agreement with Employee, shall not constitute a defense to the enforcement by a Banking Organization of the covenants and obligations in this Agreement and shall not relieve Employee of his or her obligations under this Agreement.
15. Jurisdiction and Venue. The parties agree that all suits, actions, proceedings, litigation, disputes, or claims relating to or arising out of this Agreement shall be filed and tried in the Superior or Circuit Court, as appropriate, of Vigo County, Indiana, or the United States District Court for the Southern District of Indiana, Terre Haute Division. In this regard, the parties hereby: (a) agree that venue shall be such stated courts; (b) irrevocably consent to service of process and to the jurisdiction and venue of such courts; and (c) irrevocably waive any claim of inconvenient forum if any such suit, claim, proceeding, litigation, dispute, or claim has been filed, brought, or made in any of such courts.
16. Construction. This Agreement is the result of negotiations between the parties, and no party shall be deemed to be the drafter of this Agreement; accordingly, this Agreement shall be interpreted and construed without any presumption or inference based upon or against the party causing this Agreement to be prepared. The language of this Agreement shall in all cases be construed as a whole, according to its fair meaning and not strictly for or against any party.
17. Review and Consultation. Employee acknowledges and agrees that he/she has read this Agreement in its entirety prior to executing it, understands the provisions and effects of this Agreement, and has consulted with or had the opportunity to consult with an attorney or other advisers as he/she deemed appropriate in connection with the execution of this Agreement.
18. Section Headings. Section headings are inserted into this Agreement for convenience only and shall not affect any construction or interpretation of this Agreement.
19. Reasonableness. Employee agrees and acknowledges that the covenants, restrictions and obligations set forth in this Agreement, including Sections 5 and 6, are reasonable and necessary to protect a Banking Organization. Employee agrees that the covenants, restrictions and obligations will not affect Employee’s ability to make a living.
20. Counterparts. This Agreement may be executed in any number of identical counterparts, each of which shall be deemed a duplicate original but all of which shall constitute one and the same agreement. The parties agree that signatures transmitted by facsimile or other electronic means are acceptable the same as original signatures for the execution of the Agreement.
21. Miscellaneous. Any change in Employee’s duties, responsibilities, title, position, compensation, or status, with a Financial Institution will not affect the validity or enforceability of this Agreement.
22. Representations. Employee represents and warrants that he/she is not a party to an agreement with his or her prior employer(s) (other than Heritage or HopFed) or any other Person that prohibits Solicitation of business or competing with that employer or other Person. Employee affirms and represents that performance of his/her job duties and responsibilities for a Financial Institution does not, and will not, breach any agreement or covenant not to Solicit business, compete in business, or keep in confidence proprietary or confidential information acquired in confidence or in trust prior to Employee’s employment with a Financial Institution. Employee further represents that he/she has not retained any documents or information relating to Employee’s prior employers (other than Heritage or HopFed) that may be considered confidential or proprietary information and that Employee has not disclosed or used, and will not disclose or use, any information relating to his or her prior employer(s) in connection with Employee’s employment with a Financial Institution.
23. Return of Property. Upon termination of Employee’s employment, Employee shall immediately return to the Bank (if subsequent to the Effective Time) or Heritage (if prior to the Effective Time), all Banking Organizations documents and property, including, but not limited to, Confidential Information, computer discs, manuals, reports, files, memoranda, records, door and file keys, passwords and access codes, and any other physical or tangible things that Employee received, prepared, or helped prepare in connection with the Employee’s employment, and Employee shall not retain any copies, duplicates, reproductions or excerpts thereof. At the Bank’s or Heritage’s request, Employee shall provide written verification under the penalties for perjury of his/her compliance with this covenant.
24. Survival. Except as set forth below, the covenants in Sections 4, 5, 6 and 23 shall survive the termination of Employee’s employment with a Financial Institution regardless of the reason for termination. If the Merger is not consummated and the Merger Agreement is terminated, Sections 4, 5, 6 and 23 shall survive with respect to First Financial and the Bank, but shall not survive with respect to HopFed or Heritage.
[Signature Page to Follow]
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date indicated below.
FIRST FINANCIAL CORPORATION
By: /s/ Norman L. Lowery Date: January 7, 2019
Printed Name: Norman L. Lowery
Title: President & CEO
FIRST FINANCIAL BANK, N.A.
By: /s/ Norman L. Lowery Date: January 7, 2019
Printed Name: Norman L. Lowery
Title: President & CEO
HOPFED BANCORP, INC.
By: /s/ John E. Peck Date: January 7, 2019
Printed Name: John E. Peck
Title: President/CEO
HERITAGE BANK USA, INC.
By: /s/ John E. Peck Date: January 7, 2019
Printed Name: John E. Peck
Title: President/CEO
EMPLOYEE
Printed Name: Billy C. Duvall Date: January 7, 2019
Signature: /s/ Billy C. Duvall
| Entailment |
548_nda-4 | 548_nda-4_0 | Q: Receiving Party shall not use any Confidential Information for any purpose other than the purposes stated in Agreement.
Text: Exhibit 10.8
NON-DISCLOSURE AND NON-SOLICITATION AGREEMENT
THIS NON-DISCLOSURE AND NON-SOLICITATION AGREEMENT (“Agreement”) is made and entered into, effective as of the date first written below, by and among First Financial Corporation (“First Financial”), First Financial Bank, N.A. (“Bank”), a wholly-owned subsidiary of First Financial, HopFed Bancorp, Inc. (“HopFed”), Heritage Bank USA, Inc., (“Heritage”), a wholly-owned subsidiary of HopFed, and Billy C. Duvall (“Employee”). “Banking Organization” shall mean First Financial, the Bank, HopFed, and/or Heritage. “Financial Institution” shall mean the Bank and/or Heritage. First Financial, the Bank, HopFed, Heritage and Employee may be collectively referenced as the “parties” or individually as a “party.”
WHEREAS, pursuant to that certain Agreement and Plan of Merger, dated January 7, 2019, by and between HopFed and First Financial (the “Merger Agreement”), HopFed shall be merged with and into First Financial (the “Merger”) effective as of the date and time provided in the Merger Agreement (the “Effective Time”); and
WHEREAS, Heritage will be merged into the Bank at the Effective Time or shortly thereafter; and
WHEREAS, Employee is currently an employee of Heritage and the Bank intends to offer employment to the Employee as an at-will employee to provide services for and on behalf of the Bank immediately upon the Effective Time;
WHEREAS, as a result of employment with Heritage up to the Effective Time and with the Bank thereafter, Employee had, has and will have access to Confidential Information (as defined below) and may have acquired or will acquire knowledge regarding Confidential Information, including, but not limited to, information regarding Customers or Potential Customers (as defined below), and a Banking Organization could be harmed if such Confidential Information were to be used, divulged or become known to any competitor of a Banking Organization or to any other Person (as defined below) or to any entity outside of a Banking Organization;
WHEREAS, Employee has developed or may develop contacts and business relationships with Customers or Potential Customers which could be used to the detriment of a Banking Organization and/or to solicit employees away from a Banking Organization; and
WHEREAS, each Banking Organization desires reasonable protection of its respective confidential business and customer information which such Banking Organization has developed and will develop over the years at substantial expense.
NOW, THEREFORE, the parties incorporate the above recitals, and in consideration of the mutual promises, covenants and agreements made herein, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Consideration/At-Will Employment.
a. This Agreement neither constitutes an employment contract or agreement to Employee for a stated period of time, nor does it alter Employee’s existing employment status.
b. In consideration of Employee’s promises, covenants and agreements set forth in this Agreement, (i) as of the date of this Agreement and up to the Effective Time Heritage shall maintain Employee’s employment with the compensation and benefits commensurate therewith, and (ii) effective as of the Effective Time, the Bank shall offer or maintain Employee’s employment as an at-will employee with the compensation and benefits commensurate therewith. For avoidance of doubt, following the Effective Time, Bank or Employee can terminate the employment at any time, with or without cause, and with or without prior notice. Employee understands and agrees, upon the Effective Time, that he/she will be an at-will employee of Bank and that this Agreement does not change or affect Employee’s employee-at-will status.
2. Duties. Employee shall devote his/her full working time and attention to the performance of those services for the Banking Organization which are assigned to him/her from time to time and to perform such services in a faithful, honest and diligent manner and in the best interest of such Banking Organization.
3. Definitions of Key Terms.
a. “Banking and Financial Services” shall mean those banking and related financial services of a Banking Organization or subsidiary thereof, including but not limited to, checking and savings accounts, health savings accounts, money market accounts, loans, credit cards, cash management services, lines of credit, investment services (such as IRAs, college savings plans, estate planning, investment planning, business planning), and trust services, provided during any period in which Employee served or will serve in any capacity for a Financial Institution and all banking and related financial services substantially similar to such banking and related financial services.
b. “Confidential Information” shall mean any and all materials, records, data, documents, lists, writings, and information (whether in writing, printed, electronically stored, computerized, on disk or otherwise, including, but not limited to, all copies, summaries, analyses, drafts, and extracts) relating or referring in any manner to trade secrets (as currently defined under applicable law, including, but not limited to, the Indiana Uniform Trade Secrets Act and any amendments or successor statutes) of a Banking Organization, as well as other non-public financial or proprietary information of a Banking Organization including, but not limited to, business reports, business plans, projections, income statements, profit and loss statements, business strategies and/or strategic plans, internal audits, sales information, sales techniques, business costs, product pricing, budgets, research and development, intellectual property, software and/or computer programs, marketing strategies or ideas, marketing plans or materials, business development plans or strategies, records or information relating to customers or account holders, customer lists, inventions, and processes, systems, methods, documentation or devices which are unique or proprietary to the business of or services or products of a Banking Organization. Confidential Information shall not include information that: (i) is or becomes readily or publicly available, not as a result of a violation of this Agreement or other obligation of confidence, directly or indirectly, of the disclosing party; (ii) is developed by other parties, including, but not limited to, subsequent employers of the Employee, independent of the knowledge or resources of the Employee based upon his or her prior access to a Banking Organization’s Confidential Information; (iii) is independently developed after the Employee’s termination of employment without reference to or use of the Confidential Information or materials based thereon; (iv) is based on the Employee’s personal experience, knowledge, enterprise and expertise in the delivery of Banking and Financial Services and which is general knowledge concerning the industry, not specific to a Banking Organization; or (v) is disclosed pursuant to the requirements of a court, administrative agency or other governmental agency.
c. “Customers” or “Customer” shall mean any Person to whom a Banking Organization rendered or provided Banking and Financial Services at any time during the one-year period prior to Employee’s termination of employment with a Financial Institution: (i) with whom Employee had any material contact (either directly or indirectly); (ii) which Employee managed, had responsibility for or regularly serviced while employed by the Financial Institution, provided, however, this shall not be construed to include supervising those who have such a relationship to the Customer; or, (iii) about which Employee obtained Confidential Information.
d. “Employees,” “Agents,” and “Independent Contractors” shall mean any and all persons employed or contracted by a Banking Organization or who were employed or contracted by a Banking Organization, as an employee, agent or independent contractor, within the six (6) month period prior to Employee’s termination of employment with either Financial Institution.
e. “Person” shall mean any individual, partnership, corporation, organization, bank, credit union, firm, association, limited liability company, trust, joint venture, company or other entity, body, agency or department thereof.
f. “Potential Customer” shall mean any Person that Employee directly solicited, targeted or specifically identified as a prospective or potential customer, or about which Employee obtained information on behalf of a Banking Organization for purposes of directly soliciting, targeting or specifically identifying as a prospective or potential customer, during the one (1) year period prior to Employee’s termination of employment with either Financial Institution.
g. “Solicit”, “Solicited” or “Solicitation” means any direct or indirect communication of any kind whatsoever, regardless of by whom initiated, inviting, advising, inducing, encouraging, enticing, or requesting either expressly or implicitly, any Person, in any manner, to take or refrain from taking action, provided, however, this definition does not include communications initiated by Customers or Potential Customers of their own initiative, without prompting or encouragement by Employee or anyone acting on Employee’s behalf.
4. Non-Disclosure of Confidential Information. During the course of Employee’s employment with a Financial Institution, Employee agrees that Employee has or will continue to become knowledgeable about, or come to be in possession of, Confidential Information. If such Confidential Information were to be divulged or become known to any competitor of a Banking Organization, or to any other Person outside of a Banking Organization, or if Employee were to consent to be employed by any competitor of a Banking Organization, or to engage in competition with a Banking Organization, such Banking Organization will be harmed. In addition, Employee has or may develop relationships with Customers or Potential Customers so that the Confidential Information could be used to Solicit the business of such Customer or Potential Customer away from a Banking Organization.
Employee shall not, directly or indirectly, use any Confidential Information for any purpose other than the benefit of a Banking Organization, and shall not directly or indirectly, disclose, communicate, deliver, exhibit or provide any Confidential Information to any Person, except other Employees or Agents of a Banking Organization who have a need to know such Confidential Information for a proper corporate or business purpose, as required in the normal course of Employee’s service as an employee. Nothing in this Section 4, or any other provision of this Agreement, shall be construed to prohibit Employee from reporting conduct to, providing truthful information to, or participating in any investigation or proceeding brought or conducted by any federal or state government agency or self-regulatory organization.
Employee specifically acknowledges that the Confidential Information, whether reduced to writing or maintained electronically or in the mind or memory of Employee and, whether compiled by a Banking Organization and/or the Employee, derives independent economic value from not being readily known to or ascertainable by proper means by others who can obtain economic value from its disclosure or use, that reasonable efforts have been put forth by each Banking Organization to maintain the secrecy of such information, that such information is the sole property of such Banking Organization and that any retention and/or use of such information during or after Employee’s employment with either Financial Institution (except in the course of performing the Employee’s duties of employment with a Financial Institution and except as otherwise set forth above) constitutes a misappropriation of a Banking Organization’s Confidential Information.
Employee agrees that all Confidential Information and all records, documents and materials relating to all Confidential Information (including all copies thereof) shall be and remain the sole and exclusive property of a Banking Organization, and upon Employee’s termination of employment, all such Confidential Information, whether in paper or electronic form, shall be returned to a Financial Institution in good condition, without Employee retaining a copy thereof, including, but not limited to, retaining an electronic copy on any electronic device regardless of whether such device is owned by Employee. At a Financial Institution’s request, Employee shall provide written verification, under the penalties for perjury, of his/her compliance with this covenant.
5. Non-Solicitation of Customers and Potential Customers. Employee acknowledges and agrees that by virtue of Employee’s position with a Banking Organization, Employee has or will have advantageous familiarity and personal contacts with Customers and Potential Customers and will have advantageous familiarity with the business operations and affairs of a Banking Organization. Employee further acknowledges and agrees that Employee has been or will be placed in a position that, were Employee to leave a Financial Institution to compete with the business of a Banking Organization, such entity from which the Employee departed would, upon violation of this Agreement, suffer irreparable harm and financial loss, as well as lost goodwill and Confidential Information. Therefore, in consideration of the covenants of all Financial Institutions contained herein, Employee agrees that during Employee’s employment with a Financial Institution, and for a period of one (1) year immediately following the termination of Employee’s employment with a Financial Institution (“Restriction Period”), for whatever reason and regardless of how Employee’s employment was terminated, Employee shall not, directly or indirectly (including, but not limited to, through other individuals, any partnership, corporation or business entity in which Employee has an ownership interest or serves as an officer, employee, independent contractor, representative, agent or consultant), either for Employee’s own benefit or the benefit of any other Person:
a. Solicit, divert, or take away (or attempt to Solicit, divert or take away) any Banking and Financial Services to or from any Customer or Potential Customer; or
b. advise, persuade or induce (or attempt to advise, persuade or induce) any Customer or Potential Customer to terminate, reduce, limit, or change the Customer’s services or business relationship, or the Potential Customer’s contemplated services or business relationship, with a Financial Institution; or
c. directly provide Banking and Financial Services to, or directly accept Banking and Financial Services from, any Customer or Potential Customer.
This Agreement is not intended to prevent Employee from accepting employment with an organization that competes with the Banking Organizations by offering Banking and Financial Services to Customers or Potential Customers. The Parties acknowledge that Employee may be associated with such an Organization and that such association may place Employee in a senior or supervisory role to those in the organization that have contact with Customers or Potential Customers. Employee shall not be in violation of this Agreement merely by engaging in such a role, which may include:
a. supervising those who provide Banking and Financial Services to Customers or Potential Customers;
b. engaging in credit review, underwriting, loan approval, or financial analysis of a Customer or Potential Customer’s business as a part of a supervisory or management role, so long as such activity does not require the disclosure of Confidential Information, direct contact with the Customer or Potential Customer, or the disclosure of Employee’s role to the Customer or Potential Customer;
c. performing or supervising those that perform data processing, accounting, rate review, document review or similar “back room” services related to a Customer or Potential Customer so long as the services do not require the disclosure of Confidential Information or contact with the Customer or Potential Customer.
6. Non-Solicitation of Employees and Others. In consideration of the covenants of all Financial Institutions contained herein, Employee agrees that during Employee’s employment with a Financial Institution, and for a period of two (2) years immediately following the termination of Employee’s employment with a Financial Institution, for whatever reason and regardless of how Employee’s employment was terminated, Employee shall not, directly or indirectly (including, but not limited to, through other individuals, any partnership, corporation or business entity in which Employee has an ownership interest or serves as an officer, employee, independent contractor, representative, agent or consultant), either for Employee’s own benefit or the benefit of any other Person:
c. Solicit, entice or persuade (or attempt to Solicit, entice or persuade) any Employee to terminate his or her employment with a Banking Organization, or offer or provide employment (whether such employment is with Employee or any other Person) either on a full-time or part-time, consulting or Independent Contractor basis; or
d. Solicit, entice or persuade (or attempt to Solicit, entice or persuade) any Independent Contractors or Agents to terminate their contract or relationship with a Banking Organization or discontinue providing services to a Banking Organization and/or Customers; or
e. Solicit, entice or persuade (or attempt to Solicit, entice or persuade) any suppliers, vendors or others who were supplying services or goods to a Banking Organization during the one year period prior to Employee’s termination, to terminate, reduce, limit or change their business or relationship with a Banking Organization.
7. Tolling of Covenants. Employee acknowledges that a Banking Organization is entitled to the full post-termination restrictions on the activities set forth in Sections 5 and 6, as applicable. Therefore, in the event any of the provisions of these Sections are breached by Employee, the commencement of the applicable post-termination restriction will not begin until Employee is in full compliance with Section 5 and/or 6.
8. Severability/Blue Pencil. Each of the provisions of this Agreement, including, but not limited to, the restrictive covenants in Sections 5 and 6, are distinct and severable, notwithstanding that the covenants may be set forth in one section for convenience. If any provision of this Agreement shall be determined to be invalid, illegal or unenforceable in whole or in part, for any reason, neither the validity of the remaining part of such provision nor the validity of any other provision of this Agreement shall in any way be affected. Should any particular restrictive covenant, provision or clause of this Agreement be held unreasonable or unenforceable for any reason, including without limitation, the time period, geographic area and/or scope of activity covered by such covenant, provision or clause, the parties acknowledge and agree that such covenant, provision or clause shall be given effect and enforce to whatever extent would be
reasonable and enforceable under applicable law. The parties expressly authorize a court of competent jurisdiction to modify or revise such provision to limit the covenants to cover the maximum period of time, range of activities or other restrictions as would be enforceable under Indiana law.
9. Available Relief. Employee agrees that a Banking Organization, or its successor or assigns, will suffer irreparable damage and injury and will not have an adequate remedy at law in the event of any breach by Employee of any provision of Sections 4, 5 or 6, herein. Accordingly, in the event of a breach or of a threatened or attempted breach by Employee of Sections 4, 5, or 6, in addition to all other remedies to which a Banking Organization is entitled under law, in equity, or otherwise (including, but not limited to, monetary damages), a Banking Organization or its assigns and successors, shall be entitled to a temporary restraining order and/or preliminary or permanent injunction (without the necessity of showing any actual damage) or a decree of specific performance and no bond or other security shall be required in that connection.
10. Enforcement/Attorneys’ Fees. In any action that is brought to enforce or interpret this Agreement, the prevailing party or its assigns and successors, shall be entitled to recover their reasonable attorneys’ and paralegal fees and expenses incurred in connection therewith. If a Banking Organization or its assigns and successors, institute any action or proceeding to enforce the provisions of this Agreement, Employee hereby waives all claims or defenses that a Banking Organization or its assigns and successors, have an adequate remedy at law, and Employee shall not urge in any such action or proceeding the claim or defense that such a remedy at law exists.
11. Assignments; Successors and Assigns. The rights and obligations of Employee hereunder are not assignable or delegable by Employee, and any prohibited assignment or delegation will be null and void. The Banking Organization may, without the consent of the Employee, assign this Agreement to any successor or in connection with any merger, consolidation, share exchange, combination, sale of stock or assets or similar transaction. The provisions hereof shall inure to the benefit of and be binding upon the successors and assigns of a Banking Organization.
12. Governing Law. This Agreement shall be interpreted under, subject to and governed by the laws of the State of Indiana, without consideration of the choice of law principles thereof, and all questions concerning its validity, construction and administration shall be determined in accordance with Indiana law.
13. Entire Agreement/Modification/Waiver. This Agreement constitutes the entire agreement among the parties relating to the subject matter hereof and expressly supersedes any prior agreements between the parties relating to the subject matter hereof. This Agreement shall not be terminated, amended or modified without the prior written consent of the Bank’s President and Chief Executive Officer and Employee. No failure or delay by a Banking Organization in exercising any right or remedy under this Agreement shall operate as a waiver thereof, nor shall any waiver by a Banking Organization under this Agreement operate or be construed as a continuing waiver or a waiver of any subsequent breach or noncompliance hereunder. No single or partial exercise of any right or remedy by a Banking Organization shall preclude any other or further exercise thereof or the exercise of any other right or remedy. Any waiver by a Banking Organization under this Agreement shall be in writing and signed by the Bank’s President and Chief Executive Officer. A waiver shall operate only as to the specific term or condition waived and will not constitute a waiver for the future or act on anything other than that which is specifically waived.
14. “No-Defense” Provision. The covenants set forth in this Agreement are essential terms and conditions to a Banking Organization employing or continuing to employ Employee, and shall be construed as independent of any other obligations or agreements between Employee and a Banking Organization. The existence of any claim or cause of action Employee may have against a Banking Organization, including, but not limited to, the alleged material breach by a Banking Organization of any agreement with Employee, shall not constitute a defense to the enforcement by a Banking Organization of the covenants and obligations in this Agreement and shall not relieve Employee of his or her obligations under this Agreement.
15. Jurisdiction and Venue. The parties agree that all suits, actions, proceedings, litigation, disputes, or claims relating to or arising out of this Agreement shall be filed and tried in the Superior or Circuit Court, as appropriate, of Vigo County, Indiana, or the United States District Court for the Southern District of Indiana, Terre Haute Division. In this regard, the parties hereby: (a) agree that venue shall be such stated courts; (b) irrevocably consent to service of process and to the jurisdiction and venue of such courts; and (c) irrevocably waive any claim of inconvenient forum if any such suit, claim, proceeding, litigation, dispute, or claim has been filed, brought, or made in any of such courts.
16. Construction. This Agreement is the result of negotiations between the parties, and no party shall be deemed to be the drafter of this Agreement; accordingly, this Agreement shall be interpreted and construed without any presumption or inference based upon or against the party causing this Agreement to be prepared. The language of this Agreement shall in all cases be construed as a whole, according to its fair meaning and not strictly for or against any party.
17. Review and Consultation. Employee acknowledges and agrees that he/she has read this Agreement in its entirety prior to executing it, understands the provisions and effects of this Agreement, and has consulted with or had the opportunity to consult with an attorney or other advisers as he/she deemed appropriate in connection with the execution of this Agreement.
18. Section Headings. Section headings are inserted into this Agreement for convenience only and shall not affect any construction or interpretation of this Agreement.
19. Reasonableness. Employee agrees and acknowledges that the covenants, restrictions and obligations set forth in this Agreement, including Sections 5 and 6, are reasonable and necessary to protect a Banking Organization. Employee agrees that the covenants, restrictions and obligations will not affect Employee’s ability to make a living.
20. Counterparts. This Agreement may be executed in any number of identical counterparts, each of which shall be deemed a duplicate original but all of which shall constitute one and the same agreement. The parties agree that signatures transmitted by facsimile or other electronic means are acceptable the same as original signatures for the execution of the Agreement.
21. Miscellaneous. Any change in Employee’s duties, responsibilities, title, position, compensation, or status, with a Financial Institution will not affect the validity or enforceability of this Agreement.
22. Representations. Employee represents and warrants that he/she is not a party to an agreement with his or her prior employer(s) (other than Heritage or HopFed) or any other Person that prohibits Solicitation of business or competing with that employer or other Person. Employee affirms and represents that performance of his/her job duties and responsibilities for a Financial Institution does not, and will not, breach any agreement or covenant not to Solicit business, compete in business, or keep in confidence proprietary or confidential information acquired in confidence or in trust prior to Employee’s employment with a Financial Institution. Employee further represents that he/she has not retained any documents or information relating to Employee’s prior employers (other than Heritage or HopFed) that may be considered confidential or proprietary information and that Employee has not disclosed or used, and will not disclose or use, any information relating to his or her prior employer(s) in connection with Employee’s employment with a Financial Institution.
23. Return of Property. Upon termination of Employee’s employment, Employee shall immediately return to the Bank (if subsequent to the Effective Time) or Heritage (if prior to the Effective Time), all Banking Organizations documents and property, including, but not limited to, Confidential Information, computer discs, manuals, reports, files, memoranda, records, door and file keys, passwords and access codes, and any other physical or tangible things that Employee received, prepared, or helped prepare in connection with the Employee’s employment, and Employee shall not retain any copies, duplicates, reproductions or excerpts thereof. At the Bank’s or Heritage’s request, Employee shall provide written verification under the penalties for perjury of his/her compliance with this covenant.
24. Survival. Except as set forth below, the covenants in Sections 4, 5, 6 and 23 shall survive the termination of Employee’s employment with a Financial Institution regardless of the reason for termination. If the Merger is not consummated and the Merger Agreement is terminated, Sections 4, 5, 6 and 23 shall survive with respect to First Financial and the Bank, but shall not survive with respect to HopFed or Heritage.
[Signature Page to Follow]
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date indicated below.
FIRST FINANCIAL CORPORATION
By: /s/ Norman L. Lowery Date: January 7, 2019
Printed Name: Norman L. Lowery
Title: President & CEO
FIRST FINANCIAL BANK, N.A.
By: /s/ Norman L. Lowery Date: January 7, 2019
Printed Name: Norman L. Lowery
Title: President & CEO
HOPFED BANCORP, INC.
By: /s/ John E. Peck Date: January 7, 2019
Printed Name: John E. Peck
Title: President/CEO
HERITAGE BANK USA, INC.
By: /s/ John E. Peck Date: January 7, 2019
Printed Name: John E. Peck
Title: President/CEO
EMPLOYEE
Printed Name: Billy C. Duvall Date: January 7, 2019
Signature: /s/ Billy C. Duvall
| Entailment |
550_nda-11 | 550_nda-11_0 | Q: Receiving Party shall not reverse engineer any objects which embody Disclosing Party's Confidential Information.
Text: MUTUAL CONFIDENTIALITY AND
NON-DISCLOSURE AGREEMENT
This Mutual Confidentiality and Non-Disclosure Agreement (this "Agreement") is made this day of March, 2002, and effective as of February 26, 2002, between MDI Entertainment, Inc. ("MDI"), whose address is 201 Ann Street, 5th Floor, Hartford, Connecticut 06103 and Scientific Games Corporation ("Scientific Games") whose address is 750 Lexington Avenue, 25th Floor, New York, New York 10022.
W I T N E S S E T H:
WHEREAS, in connection with the analyses of a possible negotiated transaction between MDI and Scientific Games (collectively, the "Companies"), each of the Companies has requested or will request certain oral and written information concerning the other Company from the officers, directors, employees and/or agents of the respective Companies (collectively, the "Evaluation Material").
NOW, THEREFORE, in consideration of the premises, each of which is made a contractual part hereof, MDI and Scientific Games agree in consideration of furnishing the other party with the Evaluation Material (it being understood that the parties are also agreeing to cause such of their respective affiliates, representatives and agents, including but not limited to, investment bankers, attorneys and accountants, which are provided with the Evaluation Material to comply with the provisions hereof):
(1) The Evaluation Material will be used solely for the purpose of evaluating a possible transaction between the Companies and not in any way directly or indirectly detrimental to the Companies (competitively or otherwise), and unless and until the parties have completed a transaction pursuant to a formal contractually binding agreement ("Definitive Agreement"), such information will be kept confidential, except that each party may disclose the Evaluation Material or portions thereof to those of its directors, officers, employees, consultants, advisors and professional representatives (the persons to whom such disclosure is permissible being collectively called "Representatives") in each case who need to know such information for the purpose of evaluating a possible transaction between the Companies; provided, however, that prior to disclosing the Evaluation Material or any portion thereof to any of such Representatives, the disclosing party will secure the undertaking of its Representative to be bound by the terms of this Confidentiality Agreement to the same extent that the disclosing party is bound by this Agreement. Each party agrees to be responsible for any breach of this Agreement or such undertaking by it or its Representatives. In the event that either party or any of its Representatives become legally compelled (by deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process) to disclose any of the Evaluation Material, such party shall provide the other party with prompt prior written notice of such requirement so that the other party may seek a protective order or other appropriate remedy and/or waive compliance with the terms of this Agreement. In the event that such protective order or other remedy is not obtained, or that the other party waives compliance with the provisions hereof, the disclosing party agrees to furnish only that portion of the Evaluation Material which it is advised by written opinion of its counsel is legally required and to exercise reasonable efforts to obtain assurance that confidential treatment will be accorded such Evaluation Material.
(2) The term "Evaluation Material" does not include any information which (i) at the time of disclosure or thereafter is generally available to and known by the public (other than in the case of Evaluation Material for Scientific Games as a result of a disclosure directly or indirectly by MDI or its Representatives and in the case of Evaluation Material for MDI as a result of a disclosure directly or indirectly by Scientific Games or its Representatives), (ii) was or becomes available to Scientific Games or MDI on a nonconfidential basis from a source other than the other party or its advisors, provided that such source is not and was not bound by a confidentiality agreement with or for the benefit of the party with respect to whom the information pertains, or (iii) was in the possession of the disclosing party prior to the date of this Agreement and was obtained by such party without the breach, directly or indirectly, by such party or any other person of any obligation or duty owed to the party with respect to whom the information pertains.
(3) If a transaction between the Companies is not consummated or if either party at any time so requests, each party will promptly return to the other party all copies of the Evaluation Material in its possession or in the possession of its Representatives, and each party will destroy all copies of any analyses, compilations, studies or other documents prepared by it or for its use containing or reflecting any Evaluation Material.
(4) Without the prior written consent of the other party, each party will not, and will cause its Representatives not to, disclose to any person either the status of the investigations, discussions or negotiations taking place concerning a possible transaction between the parties, or that either party has requested or received Evaluation Material from the other party or any of the terms, conditions or other facts with respect to any such possible transaction except as disclosed in that certain letter of intent between the parties dated February 25, 2002. The term "person" as used in this Agreement will be interpreted broadly to include, without limitation, any corporation, company, partnership or individual. The obligations of Scientific Games and MDI under this paragraph (4) shall be subject to their disclosure obligations under federal and state securities laws.
(5) It is understood that each party will arrange for appropriate contacts for due diligence purposes. It is further understood that all (i) communications regarding the possible negotiated transaction contemplated hereby, (ii) requests for additional information, (ii) requests for facility tours or management meetings and (iv) discussions or questions regarding procedures, will be submitted or directed, in the case of Scientific Games, to Mr. Martin E. Schloss or Mr. C. Gray Bethea, Jr., and in the case of MDI, to Steve M. Saferin or Kenneth M. Przysiecki.
(6) Each party understands and acknowledges that the other party is making no representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material, and neither the disclosing party, nor any of its respective officers, directors, employees, stockholders, affiliates or agents will have any liability to the other party or any other person resulting from such other party's use of the Evaluation Material. Only those representations or warranties that are made to MDI or Scientific Games, as the case may be, in a Definitive Agreement when, as, and if it is executed, and subject to such limitations and restrictions as may be specified in such Definitive Agreement, will have any legal effect.
(7) Each party also understands and agrees that no contract or agreement providing for any transaction shall be deemed to exist between the parties unless and until a Definitive Agreement has been executed and delivered, and each party hereby waives, in advance, any claims (including, without limitation, breach of contract) in connection with or involving the other party or any of its businesses based on the purported existence of any such contract or agreement unless and until and only to the extent that the parties shall have entered into a Definitive Agreement with respect to which a breach is alleged. Each party also agrees that unless and until a Definitive Agreement between the parties with respect to a negotiated transaction has been executed and delivered, neither of the parties nor their stockholders has any legal obligation of any kind whatsoever with respect to any such transaction by virtue of this Agreement or any other written or oral expression with respect to such transaction except, in the case of this Agreement, for the matters specifically agreed to herein. For purposes of this paragraph, the term "Definitive Agreement" does not include an executed letter of intent or any other preliminary written agreement, nor does it include any written or verbal acceptance of an offer or bid on the part of either party. Each party further understands that (i) each party shall be free to negotiate for or with respect to any transaction respecting itself or any or all of its business as such party in its sole discretion shall determine (including, without limitation, negotiating with any of prospective merger partners, sellers or buyers and entering into a Definitive Agreement respecting any thereof without prior notice to the other party or any other person) and (ii) each party shall not have any claims whatsoever against the other party, or any of such other party's respective directors, officers, stockholders, affiliates or agents arising out of or relating to any such transaction (other than those as against the parties to a Definitive Agreement with you in accordance with the terms thereof). Neither this paragraph nor any other provision in this Agreement can be waived or amended except by written consent of the party which is sought to be bound, which consent shall specifically make such waiver or amendment.
(8) Each party agrees that the other party shall be entitled to equitable relief, including injunction and specific performance, in the event of any breach of the provisions of this Agreement, in addition to all other remedies available to the other part at law or in equity.
(9) It is further understood and agreed that no failure or delay by either party in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder.
This Agreement is for the benefit of the parties and will be governed by and construed in accordance with the laws of the State of Delaware. The obligations of the parties under this Agreement will expire three (3) years from the date of this Agreement.
IN WITNESS WHEREOF, the undersigned, by their duly authorized officers have caused this Agreement to be executed as of the date first written above.
SCIENTIFIC GAMES CORPORATION
By: /s/ MARTIN E. SCHLOSS
Name: Martin E. Schloss
Title: Vice President
MDI ENTERTAINMENT, INC.
By: /s/ STEVEN M. SAFERIN
Name: Steven M. Saferin
Title: Chief Executive Officer
| Not mentioned |
550_nda-16 | 550_nda-16_0 | Q: Receiving Party shall destroy or return some Confidential Information upon the termination of Agreement.
Text: MUTUAL CONFIDENTIALITY AND
NON-DISCLOSURE AGREEMENT
This Mutual Confidentiality and Non-Disclosure Agreement (this "Agreement") is made this day of March, 2002, and effective as of February 26, 2002, between MDI Entertainment, Inc. ("MDI"), whose address is 201 Ann Street, 5th Floor, Hartford, Connecticut 06103 and Scientific Games Corporation ("Scientific Games") whose address is 750 Lexington Avenue, 25th Floor, New York, New York 10022.
W I T N E S S E T H:
WHEREAS, in connection with the analyses of a possible negotiated transaction between MDI and Scientific Games (collectively, the "Companies"), each of the Companies has requested or will request certain oral and written information concerning the other Company from the officers, directors, employees and/or agents of the respective Companies (collectively, the "Evaluation Material").
NOW, THEREFORE, in consideration of the premises, each of which is made a contractual part hereof, MDI and Scientific Games agree in consideration of furnishing the other party with the Evaluation Material (it being understood that the parties are also agreeing to cause such of their respective affiliates, representatives and agents, including but not limited to, investment bankers, attorneys and accountants, which are provided with the Evaluation Material to comply with the provisions hereof):
(1) The Evaluation Material will be used solely for the purpose of evaluating a possible transaction between the Companies and not in any way directly or indirectly detrimental to the Companies (competitively or otherwise), and unless and until the parties have completed a transaction pursuant to a formal contractually binding agreement ("Definitive Agreement"), such information will be kept confidential, except that each party may disclose the Evaluation Material or portions thereof to those of its directors, officers, employees, consultants, advisors and professional representatives (the persons to whom such disclosure is permissible being collectively called "Representatives") in each case who need to know such information for the purpose of evaluating a possible transaction between the Companies; provided, however, that prior to disclosing the Evaluation Material or any portion thereof to any of such Representatives, the disclosing party will secure the undertaking of its Representative to be bound by the terms of this Confidentiality Agreement to the same extent that the disclosing party is bound by this Agreement. Each party agrees to be responsible for any breach of this Agreement or such undertaking by it or its Representatives. In the event that either party or any of its Representatives become legally compelled (by deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process) to disclose any of the Evaluation Material, such party shall provide the other party with prompt prior written notice of such requirement so that the other party may seek a protective order or other appropriate remedy and/or waive compliance with the terms of this Agreement. In the event that such protective order or other remedy is not obtained, or that the other party waives compliance with the provisions hereof, the disclosing party agrees to furnish only that portion of the Evaluation Material which it is advised by written opinion of its counsel is legally required and to exercise reasonable efforts to obtain assurance that confidential treatment will be accorded such Evaluation Material.
(2) The term "Evaluation Material" does not include any information which (i) at the time of disclosure or thereafter is generally available to and known by the public (other than in the case of Evaluation Material for Scientific Games as a result of a disclosure directly or indirectly by MDI or its Representatives and in the case of Evaluation Material for MDI as a result of a disclosure directly or indirectly by Scientific Games or its Representatives), (ii) was or becomes available to Scientific Games or MDI on a nonconfidential basis from a source other than the other party or its advisors, provided that such source is not and was not bound by a confidentiality agreement with or for the benefit of the party with respect to whom the information pertains, or (iii) was in the possession of the disclosing party prior to the date of this Agreement and was obtained by such party without the breach, directly or indirectly, by such party or any other person of any obligation or duty owed to the party with respect to whom the information pertains.
(3) If a transaction between the Companies is not consummated or if either party at any time so requests, each party will promptly return to the other party all copies of the Evaluation Material in its possession or in the possession of its Representatives, and each party will destroy all copies of any analyses, compilations, studies or other documents prepared by it or for its use containing or reflecting any Evaluation Material.
(4) Without the prior written consent of the other party, each party will not, and will cause its Representatives not to, disclose to any person either the status of the investigations, discussions or negotiations taking place concerning a possible transaction between the parties, or that either party has requested or received Evaluation Material from the other party or any of the terms, conditions or other facts with respect to any such possible transaction except as disclosed in that certain letter of intent between the parties dated February 25, 2002. The term "person" as used in this Agreement will be interpreted broadly to include, without limitation, any corporation, company, partnership or individual. The obligations of Scientific Games and MDI under this paragraph (4) shall be subject to their disclosure obligations under federal and state securities laws.
(5) It is understood that each party will arrange for appropriate contacts for due diligence purposes. It is further understood that all (i) communications regarding the possible negotiated transaction contemplated hereby, (ii) requests for additional information, (ii) requests for facility tours or management meetings and (iv) discussions or questions regarding procedures, will be submitted or directed, in the case of Scientific Games, to Mr. Martin E. Schloss or Mr. C. Gray Bethea, Jr., and in the case of MDI, to Steve M. Saferin or Kenneth M. Przysiecki.
(6) Each party understands and acknowledges that the other party is making no representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material, and neither the disclosing party, nor any of its respective officers, directors, employees, stockholders, affiliates or agents will have any liability to the other party or any other person resulting from such other party's use of the Evaluation Material. Only those representations or warranties that are made to MDI or Scientific Games, as the case may be, in a Definitive Agreement when, as, and if it is executed, and subject to such limitations and restrictions as may be specified in such Definitive Agreement, will have any legal effect.
(7) Each party also understands and agrees that no contract or agreement providing for any transaction shall be deemed to exist between the parties unless and until a Definitive Agreement has been executed and delivered, and each party hereby waives, in advance, any claims (including, without limitation, breach of contract) in connection with or involving the other party or any of its businesses based on the purported existence of any such contract or agreement unless and until and only to the extent that the parties shall have entered into a Definitive Agreement with respect to which a breach is alleged. Each party also agrees that unless and until a Definitive Agreement between the parties with respect to a negotiated transaction has been executed and delivered, neither of the parties nor their stockholders has any legal obligation of any kind whatsoever with respect to any such transaction by virtue of this Agreement or any other written or oral expression with respect to such transaction except, in the case of this Agreement, for the matters specifically agreed to herein. For purposes of this paragraph, the term "Definitive Agreement" does not include an executed letter of intent or any other preliminary written agreement, nor does it include any written or verbal acceptance of an offer or bid on the part of either party. Each party further understands that (i) each party shall be free to negotiate for or with respect to any transaction respecting itself or any or all of its business as such party in its sole discretion shall determine (including, without limitation, negotiating with any of prospective merger partners, sellers or buyers and entering into a Definitive Agreement respecting any thereof without prior notice to the other party or any other person) and (ii) each party shall not have any claims whatsoever against the other party, or any of such other party's respective directors, officers, stockholders, affiliates or agents arising out of or relating to any such transaction (other than those as against the parties to a Definitive Agreement with you in accordance with the terms thereof). Neither this paragraph nor any other provision in this Agreement can be waived or amended except by written consent of the party which is sought to be bound, which consent shall specifically make such waiver or amendment.
(8) Each party agrees that the other party shall be entitled to equitable relief, including injunction and specific performance, in the event of any breach of the provisions of this Agreement, in addition to all other remedies available to the other part at law or in equity.
(9) It is further understood and agreed that no failure or delay by either party in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder.
This Agreement is for the benefit of the parties and will be governed by and construed in accordance with the laws of the State of Delaware. The obligations of the parties under this Agreement will expire three (3) years from the date of this Agreement.
IN WITNESS WHEREOF, the undersigned, by their duly authorized officers have caused this Agreement to be executed as of the date first written above.
SCIENTIFIC GAMES CORPORATION
By: /s/ MARTIN E. SCHLOSS
Name: Martin E. Schloss
Title: Vice President
MDI ENTERTAINMENT, INC.
By: /s/ STEVEN M. SAFERIN
Name: Steven M. Saferin
Title: Chief Executive Officer
| Entailment |
550_nda-15 | 550_nda-15_0 | Q: Agreement shall not grant Receiving Party any right to Confidential Information.
Text: MUTUAL CONFIDENTIALITY AND
NON-DISCLOSURE AGREEMENT
This Mutual Confidentiality and Non-Disclosure Agreement (this "Agreement") is made this day of March, 2002, and effective as of February 26, 2002, between MDI Entertainment, Inc. ("MDI"), whose address is 201 Ann Street, 5th Floor, Hartford, Connecticut 06103 and Scientific Games Corporation ("Scientific Games") whose address is 750 Lexington Avenue, 25th Floor, New York, New York 10022.
W I T N E S S E T H:
WHEREAS, in connection with the analyses of a possible negotiated transaction between MDI and Scientific Games (collectively, the "Companies"), each of the Companies has requested or will request certain oral and written information concerning the other Company from the officers, directors, employees and/or agents of the respective Companies (collectively, the "Evaluation Material").
NOW, THEREFORE, in consideration of the premises, each of which is made a contractual part hereof, MDI and Scientific Games agree in consideration of furnishing the other party with the Evaluation Material (it being understood that the parties are also agreeing to cause such of their respective affiliates, representatives and agents, including but not limited to, investment bankers, attorneys and accountants, which are provided with the Evaluation Material to comply with the provisions hereof):
(1) The Evaluation Material will be used solely for the purpose of evaluating a possible transaction between the Companies and not in any way directly or indirectly detrimental to the Companies (competitively or otherwise), and unless and until the parties have completed a transaction pursuant to a formal contractually binding agreement ("Definitive Agreement"), such information will be kept confidential, except that each party may disclose the Evaluation Material or portions thereof to those of its directors, officers, employees, consultants, advisors and professional representatives (the persons to whom such disclosure is permissible being collectively called "Representatives") in each case who need to know such information for the purpose of evaluating a possible transaction between the Companies; provided, however, that prior to disclosing the Evaluation Material or any portion thereof to any of such Representatives, the disclosing party will secure the undertaking of its Representative to be bound by the terms of this Confidentiality Agreement to the same extent that the disclosing party is bound by this Agreement. Each party agrees to be responsible for any breach of this Agreement or such undertaking by it or its Representatives. In the event that either party or any of its Representatives become legally compelled (by deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process) to disclose any of the Evaluation Material, such party shall provide the other party with prompt prior written notice of such requirement so that the other party may seek a protective order or other appropriate remedy and/or waive compliance with the terms of this Agreement. In the event that such protective order or other remedy is not obtained, or that the other party waives compliance with the provisions hereof, the disclosing party agrees to furnish only that portion of the Evaluation Material which it is advised by written opinion of its counsel is legally required and to exercise reasonable efforts to obtain assurance that confidential treatment will be accorded such Evaluation Material.
(2) The term "Evaluation Material" does not include any information which (i) at the time of disclosure or thereafter is generally available to and known by the public (other than in the case of Evaluation Material for Scientific Games as a result of a disclosure directly or indirectly by MDI or its Representatives and in the case of Evaluation Material for MDI as a result of a disclosure directly or indirectly by Scientific Games or its Representatives), (ii) was or becomes available to Scientific Games or MDI on a nonconfidential basis from a source other than the other party or its advisors, provided that such source is not and was not bound by a confidentiality agreement with or for the benefit of the party with respect to whom the information pertains, or (iii) was in the possession of the disclosing party prior to the date of this Agreement and was obtained by such party without the breach, directly or indirectly, by such party or any other person of any obligation or duty owed to the party with respect to whom the information pertains.
(3) If a transaction between the Companies is not consummated or if either party at any time so requests, each party will promptly return to the other party all copies of the Evaluation Material in its possession or in the possession of its Representatives, and each party will destroy all copies of any analyses, compilations, studies or other documents prepared by it or for its use containing or reflecting any Evaluation Material.
(4) Without the prior written consent of the other party, each party will not, and will cause its Representatives not to, disclose to any person either the status of the investigations, discussions or negotiations taking place concerning a possible transaction between the parties, or that either party has requested or received Evaluation Material from the other party or any of the terms, conditions or other facts with respect to any such possible transaction except as disclosed in that certain letter of intent between the parties dated February 25, 2002. The term "person" as used in this Agreement will be interpreted broadly to include, without limitation, any corporation, company, partnership or individual. The obligations of Scientific Games and MDI under this paragraph (4) shall be subject to their disclosure obligations under federal and state securities laws.
(5) It is understood that each party will arrange for appropriate contacts for due diligence purposes. It is further understood that all (i) communications regarding the possible negotiated transaction contemplated hereby, (ii) requests for additional information, (ii) requests for facility tours or management meetings and (iv) discussions or questions regarding procedures, will be submitted or directed, in the case of Scientific Games, to Mr. Martin E. Schloss or Mr. C. Gray Bethea, Jr., and in the case of MDI, to Steve M. Saferin or Kenneth M. Przysiecki.
(6) Each party understands and acknowledges that the other party is making no representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material, and neither the disclosing party, nor any of its respective officers, directors, employees, stockholders, affiliates or agents will have any liability to the other party or any other person resulting from such other party's use of the Evaluation Material. Only those representations or warranties that are made to MDI or Scientific Games, as the case may be, in a Definitive Agreement when, as, and if it is executed, and subject to such limitations and restrictions as may be specified in such Definitive Agreement, will have any legal effect.
(7) Each party also understands and agrees that no contract or agreement providing for any transaction shall be deemed to exist between the parties unless and until a Definitive Agreement has been executed and delivered, and each party hereby waives, in advance, any claims (including, without limitation, breach of contract) in connection with or involving the other party or any of its businesses based on the purported existence of any such contract or agreement unless and until and only to the extent that the parties shall have entered into a Definitive Agreement with respect to which a breach is alleged. Each party also agrees that unless and until a Definitive Agreement between the parties with respect to a negotiated transaction has been executed and delivered, neither of the parties nor their stockholders has any legal obligation of any kind whatsoever with respect to any such transaction by virtue of this Agreement or any other written or oral expression with respect to such transaction except, in the case of this Agreement, for the matters specifically agreed to herein. For purposes of this paragraph, the term "Definitive Agreement" does not include an executed letter of intent or any other preliminary written agreement, nor does it include any written or verbal acceptance of an offer or bid on the part of either party. Each party further understands that (i) each party shall be free to negotiate for or with respect to any transaction respecting itself or any or all of its business as such party in its sole discretion shall determine (including, without limitation, negotiating with any of prospective merger partners, sellers or buyers and entering into a Definitive Agreement respecting any thereof without prior notice to the other party or any other person) and (ii) each party shall not have any claims whatsoever against the other party, or any of such other party's respective directors, officers, stockholders, affiliates or agents arising out of or relating to any such transaction (other than those as against the parties to a Definitive Agreement with you in accordance with the terms thereof). Neither this paragraph nor any other provision in this Agreement can be waived or amended except by written consent of the party which is sought to be bound, which consent shall specifically make such waiver or amendment.
(8) Each party agrees that the other party shall be entitled to equitable relief, including injunction and specific performance, in the event of any breach of the provisions of this Agreement, in addition to all other remedies available to the other part at law or in equity.
(9) It is further understood and agreed that no failure or delay by either party in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder.
This Agreement is for the benefit of the parties and will be governed by and construed in accordance with the laws of the State of Delaware. The obligations of the parties under this Agreement will expire three (3) years from the date of this Agreement.
IN WITNESS WHEREOF, the undersigned, by their duly authorized officers have caused this Agreement to be executed as of the date first written above.
SCIENTIFIC GAMES CORPORATION
By: /s/ MARTIN E. SCHLOSS
Name: Martin E. Schloss
Title: Vice President
MDI ENTERTAINMENT, INC.
By: /s/ STEVEN M. SAFERIN
Name: Steven M. Saferin
Title: Chief Executive Officer
| Not mentioned |
550_nda-10 | 550_nda-10_0 | Q: Receiving Party shall not disclose the fact that Agreement was agreed or negotiated.
Text: MUTUAL CONFIDENTIALITY AND
NON-DISCLOSURE AGREEMENT
This Mutual Confidentiality and Non-Disclosure Agreement (this "Agreement") is made this day of March, 2002, and effective as of February 26, 2002, between MDI Entertainment, Inc. ("MDI"), whose address is 201 Ann Street, 5th Floor, Hartford, Connecticut 06103 and Scientific Games Corporation ("Scientific Games") whose address is 750 Lexington Avenue, 25th Floor, New York, New York 10022.
W I T N E S S E T H:
WHEREAS, in connection with the analyses of a possible negotiated transaction between MDI and Scientific Games (collectively, the "Companies"), each of the Companies has requested or will request certain oral and written information concerning the other Company from the officers, directors, employees and/or agents of the respective Companies (collectively, the "Evaluation Material").
NOW, THEREFORE, in consideration of the premises, each of which is made a contractual part hereof, MDI and Scientific Games agree in consideration of furnishing the other party with the Evaluation Material (it being understood that the parties are also agreeing to cause such of their respective affiliates, representatives and agents, including but not limited to, investment bankers, attorneys and accountants, which are provided with the Evaluation Material to comply with the provisions hereof):
(1) The Evaluation Material will be used solely for the purpose of evaluating a possible transaction between the Companies and not in any way directly or indirectly detrimental to the Companies (competitively or otherwise), and unless and until the parties have completed a transaction pursuant to a formal contractually binding agreement ("Definitive Agreement"), such information will be kept confidential, except that each party may disclose the Evaluation Material or portions thereof to those of its directors, officers, employees, consultants, advisors and professional representatives (the persons to whom such disclosure is permissible being collectively called "Representatives") in each case who need to know such information for the purpose of evaluating a possible transaction between the Companies; provided, however, that prior to disclosing the Evaluation Material or any portion thereof to any of such Representatives, the disclosing party will secure the undertaking of its Representative to be bound by the terms of this Confidentiality Agreement to the same extent that the disclosing party is bound by this Agreement. Each party agrees to be responsible for any breach of this Agreement or such undertaking by it or its Representatives. In the event that either party or any of its Representatives become legally compelled (by deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process) to disclose any of the Evaluation Material, such party shall provide the other party with prompt prior written notice of such requirement so that the other party may seek a protective order or other appropriate remedy and/or waive compliance with the terms of this Agreement. In the event that such protective order or other remedy is not obtained, or that the other party waives compliance with the provisions hereof, the disclosing party agrees to furnish only that portion of the Evaluation Material which it is advised by written opinion of its counsel is legally required and to exercise reasonable efforts to obtain assurance that confidential treatment will be accorded such Evaluation Material.
(2) The term "Evaluation Material" does not include any information which (i) at the time of disclosure or thereafter is generally available to and known by the public (other than in the case of Evaluation Material for Scientific Games as a result of a disclosure directly or indirectly by MDI or its Representatives and in the case of Evaluation Material for MDI as a result of a disclosure directly or indirectly by Scientific Games or its Representatives), (ii) was or becomes available to Scientific Games or MDI on a nonconfidential basis from a source other than the other party or its advisors, provided that such source is not and was not bound by a confidentiality agreement with or for the benefit of the party with respect to whom the information pertains, or (iii) was in the possession of the disclosing party prior to the date of this Agreement and was obtained by such party without the breach, directly or indirectly, by such party or any other person of any obligation or duty owed to the party with respect to whom the information pertains.
(3) If a transaction between the Companies is not consummated or if either party at any time so requests, each party will promptly return to the other party all copies of the Evaluation Material in its possession or in the possession of its Representatives, and each party will destroy all copies of any analyses, compilations, studies or other documents prepared by it or for its use containing or reflecting any Evaluation Material.
(4) Without the prior written consent of the other party, each party will not, and will cause its Representatives not to, disclose to any person either the status of the investigations, discussions or negotiations taking place concerning a possible transaction between the parties, or that either party has requested or received Evaluation Material from the other party or any of the terms, conditions or other facts with respect to any such possible transaction except as disclosed in that certain letter of intent between the parties dated February 25, 2002. The term "person" as used in this Agreement will be interpreted broadly to include, without limitation, any corporation, company, partnership or individual. The obligations of Scientific Games and MDI under this paragraph (4) shall be subject to their disclosure obligations under federal and state securities laws.
(5) It is understood that each party will arrange for appropriate contacts for due diligence purposes. It is further understood that all (i) communications regarding the possible negotiated transaction contemplated hereby, (ii) requests for additional information, (ii) requests for facility tours or management meetings and (iv) discussions or questions regarding procedures, will be submitted or directed, in the case of Scientific Games, to Mr. Martin E. Schloss or Mr. C. Gray Bethea, Jr., and in the case of MDI, to Steve M. Saferin or Kenneth M. Przysiecki.
(6) Each party understands and acknowledges that the other party is making no representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material, and neither the disclosing party, nor any of its respective officers, directors, employees, stockholders, affiliates or agents will have any liability to the other party or any other person resulting from such other party's use of the Evaluation Material. Only those representations or warranties that are made to MDI or Scientific Games, as the case may be, in a Definitive Agreement when, as, and if it is executed, and subject to such limitations and restrictions as may be specified in such Definitive Agreement, will have any legal effect.
(7) Each party also understands and agrees that no contract or agreement providing for any transaction shall be deemed to exist between the parties unless and until a Definitive Agreement has been executed and delivered, and each party hereby waives, in advance, any claims (including, without limitation, breach of contract) in connection with or involving the other party or any of its businesses based on the purported existence of any such contract or agreement unless and until and only to the extent that the parties shall have entered into a Definitive Agreement with respect to which a breach is alleged. Each party also agrees that unless and until a Definitive Agreement between the parties with respect to a negotiated transaction has been executed and delivered, neither of the parties nor their stockholders has any legal obligation of any kind whatsoever with respect to any such transaction by virtue of this Agreement or any other written or oral expression with respect to such transaction except, in the case of this Agreement, for the matters specifically agreed to herein. For purposes of this paragraph, the term "Definitive Agreement" does not include an executed letter of intent or any other preliminary written agreement, nor does it include any written or verbal acceptance of an offer or bid on the part of either party. Each party further understands that (i) each party shall be free to negotiate for or with respect to any transaction respecting itself or any or all of its business as such party in its sole discretion shall determine (including, without limitation, negotiating with any of prospective merger partners, sellers or buyers and entering into a Definitive Agreement respecting any thereof without prior notice to the other party or any other person) and (ii) each party shall not have any claims whatsoever against the other party, or any of such other party's respective directors, officers, stockholders, affiliates or agents arising out of or relating to any such transaction (other than those as against the parties to a Definitive Agreement with you in accordance with the terms thereof). Neither this paragraph nor any other provision in this Agreement can be waived or amended except by written consent of the party which is sought to be bound, which consent shall specifically make such waiver or amendment.
(8) Each party agrees that the other party shall be entitled to equitable relief, including injunction and specific performance, in the event of any breach of the provisions of this Agreement, in addition to all other remedies available to the other part at law or in equity.
(9) It is further understood and agreed that no failure or delay by either party in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder.
This Agreement is for the benefit of the parties and will be governed by and construed in accordance with the laws of the State of Delaware. The obligations of the parties under this Agreement will expire three (3) years from the date of this Agreement.
IN WITNESS WHEREOF, the undersigned, by their duly authorized officers have caused this Agreement to be executed as of the date first written above.
SCIENTIFIC GAMES CORPORATION
By: /s/ MARTIN E. SCHLOSS
Name: Martin E. Schloss
Title: Vice President
MDI ENTERTAINMENT, INC.
By: /s/ STEVEN M. SAFERIN
Name: Steven M. Saferin
Title: Chief Executive Officer
| Entailment |
550_nda-2 | 550_nda-2_0 | Q: Confidential Information shall only include technical information.
Text: MUTUAL CONFIDENTIALITY AND
NON-DISCLOSURE AGREEMENT
This Mutual Confidentiality and Non-Disclosure Agreement (this "Agreement") is made this day of March, 2002, and effective as of February 26, 2002, between MDI Entertainment, Inc. ("MDI"), whose address is 201 Ann Street, 5th Floor, Hartford, Connecticut 06103 and Scientific Games Corporation ("Scientific Games") whose address is 750 Lexington Avenue, 25th Floor, New York, New York 10022.
W I T N E S S E T H:
WHEREAS, in connection with the analyses of a possible negotiated transaction between MDI and Scientific Games (collectively, the "Companies"), each of the Companies has requested or will request certain oral and written information concerning the other Company from the officers, directors, employees and/or agents of the respective Companies (collectively, the "Evaluation Material").
NOW, THEREFORE, in consideration of the premises, each of which is made a contractual part hereof, MDI and Scientific Games agree in consideration of furnishing the other party with the Evaluation Material (it being understood that the parties are also agreeing to cause such of their respective affiliates, representatives and agents, including but not limited to, investment bankers, attorneys and accountants, which are provided with the Evaluation Material to comply with the provisions hereof):
(1) The Evaluation Material will be used solely for the purpose of evaluating a possible transaction between the Companies and not in any way directly or indirectly detrimental to the Companies (competitively or otherwise), and unless and until the parties have completed a transaction pursuant to a formal contractually binding agreement ("Definitive Agreement"), such information will be kept confidential, except that each party may disclose the Evaluation Material or portions thereof to those of its directors, officers, employees, consultants, advisors and professional representatives (the persons to whom such disclosure is permissible being collectively called "Representatives") in each case who need to know such information for the purpose of evaluating a possible transaction between the Companies; provided, however, that prior to disclosing the Evaluation Material or any portion thereof to any of such Representatives, the disclosing party will secure the undertaking of its Representative to be bound by the terms of this Confidentiality Agreement to the same extent that the disclosing party is bound by this Agreement. Each party agrees to be responsible for any breach of this Agreement or such undertaking by it or its Representatives. In the event that either party or any of its Representatives become legally compelled (by deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process) to disclose any of the Evaluation Material, such party shall provide the other party with prompt prior written notice of such requirement so that the other party may seek a protective order or other appropriate remedy and/or waive compliance with the terms of this Agreement. In the event that such protective order or other remedy is not obtained, or that the other party waives compliance with the provisions hereof, the disclosing party agrees to furnish only that portion of the Evaluation Material which it is advised by written opinion of its counsel is legally required and to exercise reasonable efforts to obtain assurance that confidential treatment will be accorded such Evaluation Material.
(2) The term "Evaluation Material" does not include any information which (i) at the time of disclosure or thereafter is generally available to and known by the public (other than in the case of Evaluation Material for Scientific Games as a result of a disclosure directly or indirectly by MDI or its Representatives and in the case of Evaluation Material for MDI as a result of a disclosure directly or indirectly by Scientific Games or its Representatives), (ii) was or becomes available to Scientific Games or MDI on a nonconfidential basis from a source other than the other party or its advisors, provided that such source is not and was not bound by a confidentiality agreement with or for the benefit of the party with respect to whom the information pertains, or (iii) was in the possession of the disclosing party prior to the date of this Agreement and was obtained by such party without the breach, directly or indirectly, by such party or any other person of any obligation or duty owed to the party with respect to whom the information pertains.
(3) If a transaction between the Companies is not consummated or if either party at any time so requests, each party will promptly return to the other party all copies of the Evaluation Material in its possession or in the possession of its Representatives, and each party will destroy all copies of any analyses, compilations, studies or other documents prepared by it or for its use containing or reflecting any Evaluation Material.
(4) Without the prior written consent of the other party, each party will not, and will cause its Representatives not to, disclose to any person either the status of the investigations, discussions or negotiations taking place concerning a possible transaction between the parties, or that either party has requested or received Evaluation Material from the other party or any of the terms, conditions or other facts with respect to any such possible transaction except as disclosed in that certain letter of intent between the parties dated February 25, 2002. The term "person" as used in this Agreement will be interpreted broadly to include, without limitation, any corporation, company, partnership or individual. The obligations of Scientific Games and MDI under this paragraph (4) shall be subject to their disclosure obligations under federal and state securities laws.
(5) It is understood that each party will arrange for appropriate contacts for due diligence purposes. It is further understood that all (i) communications regarding the possible negotiated transaction contemplated hereby, (ii) requests for additional information, (ii) requests for facility tours or management meetings and (iv) discussions or questions regarding procedures, will be submitted or directed, in the case of Scientific Games, to Mr. Martin E. Schloss or Mr. C. Gray Bethea, Jr., and in the case of MDI, to Steve M. Saferin or Kenneth M. Przysiecki.
(6) Each party understands and acknowledges that the other party is making no representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material, and neither the disclosing party, nor any of its respective officers, directors, employees, stockholders, affiliates or agents will have any liability to the other party or any other person resulting from such other party's use of the Evaluation Material. Only those representations or warranties that are made to MDI or Scientific Games, as the case may be, in a Definitive Agreement when, as, and if it is executed, and subject to such limitations and restrictions as may be specified in such Definitive Agreement, will have any legal effect.
(7) Each party also understands and agrees that no contract or agreement providing for any transaction shall be deemed to exist between the parties unless and until a Definitive Agreement has been executed and delivered, and each party hereby waives, in advance, any claims (including, without limitation, breach of contract) in connection with or involving the other party or any of its businesses based on the purported existence of any such contract or agreement unless and until and only to the extent that the parties shall have entered into a Definitive Agreement with respect to which a breach is alleged. Each party also agrees that unless and until a Definitive Agreement between the parties with respect to a negotiated transaction has been executed and delivered, neither of the parties nor their stockholders has any legal obligation of any kind whatsoever with respect to any such transaction by virtue of this Agreement or any other written or oral expression with respect to such transaction except, in the case of this Agreement, for the matters specifically agreed to herein. For purposes of this paragraph, the term "Definitive Agreement" does not include an executed letter of intent or any other preliminary written agreement, nor does it include any written or verbal acceptance of an offer or bid on the part of either party. Each party further understands that (i) each party shall be free to negotiate for or with respect to any transaction respecting itself or any or all of its business as such party in its sole discretion shall determine (including, without limitation, negotiating with any of prospective merger partners, sellers or buyers and entering into a Definitive Agreement respecting any thereof without prior notice to the other party or any other person) and (ii) each party shall not have any claims whatsoever against the other party, or any of such other party's respective directors, officers, stockholders, affiliates or agents arising out of or relating to any such transaction (other than those as against the parties to a Definitive Agreement with you in accordance with the terms thereof). Neither this paragraph nor any other provision in this Agreement can be waived or amended except by written consent of the party which is sought to be bound, which consent shall specifically make such waiver or amendment.
(8) Each party agrees that the other party shall be entitled to equitable relief, including injunction and specific performance, in the event of any breach of the provisions of this Agreement, in addition to all other remedies available to the other part at law or in equity.
(9) It is further understood and agreed that no failure or delay by either party in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder.
This Agreement is for the benefit of the parties and will be governed by and construed in accordance with the laws of the State of Delaware. The obligations of the parties under this Agreement will expire three (3) years from the date of this Agreement.
IN WITNESS WHEREOF, the undersigned, by their duly authorized officers have caused this Agreement to be executed as of the date first written above.
SCIENTIFIC GAMES CORPORATION
By: /s/ MARTIN E. SCHLOSS
Name: Martin E. Schloss
Title: Vice President
MDI ENTERTAINMENT, INC.
By: /s/ STEVEN M. SAFERIN
Name: Steven M. Saferin
Title: Chief Executive Officer
| Not mentioned |
550_nda-1 | 550_nda-1_0 | Q: All Confidential Information shall be expressly identified by the Disclosing Party.
Text: MUTUAL CONFIDENTIALITY AND
NON-DISCLOSURE AGREEMENT
This Mutual Confidentiality and Non-Disclosure Agreement (this "Agreement") is made this day of March, 2002, and effective as of February 26, 2002, between MDI Entertainment, Inc. ("MDI"), whose address is 201 Ann Street, 5th Floor, Hartford, Connecticut 06103 and Scientific Games Corporation ("Scientific Games") whose address is 750 Lexington Avenue, 25th Floor, New York, New York 10022.
W I T N E S S E T H:
WHEREAS, in connection with the analyses of a possible negotiated transaction between MDI and Scientific Games (collectively, the "Companies"), each of the Companies has requested or will request certain oral and written information concerning the other Company from the officers, directors, employees and/or agents of the respective Companies (collectively, the "Evaluation Material").
NOW, THEREFORE, in consideration of the premises, each of which is made a contractual part hereof, MDI and Scientific Games agree in consideration of furnishing the other party with the Evaluation Material (it being understood that the parties are also agreeing to cause such of their respective affiliates, representatives and agents, including but not limited to, investment bankers, attorneys and accountants, which are provided with the Evaluation Material to comply with the provisions hereof):
(1) The Evaluation Material will be used solely for the purpose of evaluating a possible transaction between the Companies and not in any way directly or indirectly detrimental to the Companies (competitively or otherwise), and unless and until the parties have completed a transaction pursuant to a formal contractually binding agreement ("Definitive Agreement"), such information will be kept confidential, except that each party may disclose the Evaluation Material or portions thereof to those of its directors, officers, employees, consultants, advisors and professional representatives (the persons to whom such disclosure is permissible being collectively called "Representatives") in each case who need to know such information for the purpose of evaluating a possible transaction between the Companies; provided, however, that prior to disclosing the Evaluation Material or any portion thereof to any of such Representatives, the disclosing party will secure the undertaking of its Representative to be bound by the terms of this Confidentiality Agreement to the same extent that the disclosing party is bound by this Agreement. Each party agrees to be responsible for any breach of this Agreement or such undertaking by it or its Representatives. In the event that either party or any of its Representatives become legally compelled (by deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process) to disclose any of the Evaluation Material, such party shall provide the other party with prompt prior written notice of such requirement so that the other party may seek a protective order or other appropriate remedy and/or waive compliance with the terms of this Agreement. In the event that such protective order or other remedy is not obtained, or that the other party waives compliance with the provisions hereof, the disclosing party agrees to furnish only that portion of the Evaluation Material which it is advised by written opinion of its counsel is legally required and to exercise reasonable efforts to obtain assurance that confidential treatment will be accorded such Evaluation Material.
(2) The term "Evaluation Material" does not include any information which (i) at the time of disclosure or thereafter is generally available to and known by the public (other than in the case of Evaluation Material for Scientific Games as a result of a disclosure directly or indirectly by MDI or its Representatives and in the case of Evaluation Material for MDI as a result of a disclosure directly or indirectly by Scientific Games or its Representatives), (ii) was or becomes available to Scientific Games or MDI on a nonconfidential basis from a source other than the other party or its advisors, provided that such source is not and was not bound by a confidentiality agreement with or for the benefit of the party with respect to whom the information pertains, or (iii) was in the possession of the disclosing party prior to the date of this Agreement and was obtained by such party without the breach, directly or indirectly, by such party or any other person of any obligation or duty owed to the party with respect to whom the information pertains.
(3) If a transaction between the Companies is not consummated or if either party at any time so requests, each party will promptly return to the other party all copies of the Evaluation Material in its possession or in the possession of its Representatives, and each party will destroy all copies of any analyses, compilations, studies or other documents prepared by it or for its use containing or reflecting any Evaluation Material.
(4) Without the prior written consent of the other party, each party will not, and will cause its Representatives not to, disclose to any person either the status of the investigations, discussions or negotiations taking place concerning a possible transaction between the parties, or that either party has requested or received Evaluation Material from the other party or any of the terms, conditions or other facts with respect to any such possible transaction except as disclosed in that certain letter of intent between the parties dated February 25, 2002. The term "person" as used in this Agreement will be interpreted broadly to include, without limitation, any corporation, company, partnership or individual. The obligations of Scientific Games and MDI under this paragraph (4) shall be subject to their disclosure obligations under federal and state securities laws.
(5) It is understood that each party will arrange for appropriate contacts for due diligence purposes. It is further understood that all (i) communications regarding the possible negotiated transaction contemplated hereby, (ii) requests for additional information, (ii) requests for facility tours or management meetings and (iv) discussions or questions regarding procedures, will be submitted or directed, in the case of Scientific Games, to Mr. Martin E. Schloss or Mr. C. Gray Bethea, Jr., and in the case of MDI, to Steve M. Saferin or Kenneth M. Przysiecki.
(6) Each party understands and acknowledges that the other party is making no representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material, and neither the disclosing party, nor any of its respective officers, directors, employees, stockholders, affiliates or agents will have any liability to the other party or any other person resulting from such other party's use of the Evaluation Material. Only those representations or warranties that are made to MDI or Scientific Games, as the case may be, in a Definitive Agreement when, as, and if it is executed, and subject to such limitations and restrictions as may be specified in such Definitive Agreement, will have any legal effect.
(7) Each party also understands and agrees that no contract or agreement providing for any transaction shall be deemed to exist between the parties unless and until a Definitive Agreement has been executed and delivered, and each party hereby waives, in advance, any claims (including, without limitation, breach of contract) in connection with or involving the other party or any of its businesses based on the purported existence of any such contract or agreement unless and until and only to the extent that the parties shall have entered into a Definitive Agreement with respect to which a breach is alleged. Each party also agrees that unless and until a Definitive Agreement between the parties with respect to a negotiated transaction has been executed and delivered, neither of the parties nor their stockholders has any legal obligation of any kind whatsoever with respect to any such transaction by virtue of this Agreement or any other written or oral expression with respect to such transaction except, in the case of this Agreement, for the matters specifically agreed to herein. For purposes of this paragraph, the term "Definitive Agreement" does not include an executed letter of intent or any other preliminary written agreement, nor does it include any written or verbal acceptance of an offer or bid on the part of either party. Each party further understands that (i) each party shall be free to negotiate for or with respect to any transaction respecting itself or any or all of its business as such party in its sole discretion shall determine (including, without limitation, negotiating with any of prospective merger partners, sellers or buyers and entering into a Definitive Agreement respecting any thereof without prior notice to the other party or any other person) and (ii) each party shall not have any claims whatsoever against the other party, or any of such other party's respective directors, officers, stockholders, affiliates or agents arising out of or relating to any such transaction (other than those as against the parties to a Definitive Agreement with you in accordance with the terms thereof). Neither this paragraph nor any other provision in this Agreement can be waived or amended except by written consent of the party which is sought to be bound, which consent shall specifically make such waiver or amendment.
(8) Each party agrees that the other party shall be entitled to equitable relief, including injunction and specific performance, in the event of any breach of the provisions of this Agreement, in addition to all other remedies available to the other part at law or in equity.
(9) It is further understood and agreed that no failure or delay by either party in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder.
This Agreement is for the benefit of the parties and will be governed by and construed in accordance with the laws of the State of Delaware. The obligations of the parties under this Agreement will expire three (3) years from the date of this Agreement.
IN WITNESS WHEREOF, the undersigned, by their duly authorized officers have caused this Agreement to be executed as of the date first written above.
SCIENTIFIC GAMES CORPORATION
By: /s/ MARTIN E. SCHLOSS
Name: Martin E. Schloss
Title: Vice President
MDI ENTERTAINMENT, INC.
By: /s/ STEVEN M. SAFERIN
Name: Steven M. Saferin
Title: Chief Executive Officer
| Not mentioned |
550_nda-19 | 550_nda-19_0 | Q: Some obligations of Agreement may survive termination of Agreement.
Text: MUTUAL CONFIDENTIALITY AND
NON-DISCLOSURE AGREEMENT
This Mutual Confidentiality and Non-Disclosure Agreement (this "Agreement") is made this day of March, 2002, and effective as of February 26, 2002, between MDI Entertainment, Inc. ("MDI"), whose address is 201 Ann Street, 5th Floor, Hartford, Connecticut 06103 and Scientific Games Corporation ("Scientific Games") whose address is 750 Lexington Avenue, 25th Floor, New York, New York 10022.
W I T N E S S E T H:
WHEREAS, in connection with the analyses of a possible negotiated transaction between MDI and Scientific Games (collectively, the "Companies"), each of the Companies has requested or will request certain oral and written information concerning the other Company from the officers, directors, employees and/or agents of the respective Companies (collectively, the "Evaluation Material").
NOW, THEREFORE, in consideration of the premises, each of which is made a contractual part hereof, MDI and Scientific Games agree in consideration of furnishing the other party with the Evaluation Material (it being understood that the parties are also agreeing to cause such of their respective affiliates, representatives and agents, including but not limited to, investment bankers, attorneys and accountants, which are provided with the Evaluation Material to comply with the provisions hereof):
(1) The Evaluation Material will be used solely for the purpose of evaluating a possible transaction between the Companies and not in any way directly or indirectly detrimental to the Companies (competitively or otherwise), and unless and until the parties have completed a transaction pursuant to a formal contractually binding agreement ("Definitive Agreement"), such information will be kept confidential, except that each party may disclose the Evaluation Material or portions thereof to those of its directors, officers, employees, consultants, advisors and professional representatives (the persons to whom such disclosure is permissible being collectively called "Representatives") in each case who need to know such information for the purpose of evaluating a possible transaction between the Companies; provided, however, that prior to disclosing the Evaluation Material or any portion thereof to any of such Representatives, the disclosing party will secure the undertaking of its Representative to be bound by the terms of this Confidentiality Agreement to the same extent that the disclosing party is bound by this Agreement. Each party agrees to be responsible for any breach of this Agreement or such undertaking by it or its Representatives. In the event that either party or any of its Representatives become legally compelled (by deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process) to disclose any of the Evaluation Material, such party shall provide the other party with prompt prior written notice of such requirement so that the other party may seek a protective order or other appropriate remedy and/or waive compliance with the terms of this Agreement. In the event that such protective order or other remedy is not obtained, or that the other party waives compliance with the provisions hereof, the disclosing party agrees to furnish only that portion of the Evaluation Material which it is advised by written opinion of its counsel is legally required and to exercise reasonable efforts to obtain assurance that confidential treatment will be accorded such Evaluation Material.
(2) The term "Evaluation Material" does not include any information which (i) at the time of disclosure or thereafter is generally available to and known by the public (other than in the case of Evaluation Material for Scientific Games as a result of a disclosure directly or indirectly by MDI or its Representatives and in the case of Evaluation Material for MDI as a result of a disclosure directly or indirectly by Scientific Games or its Representatives), (ii) was or becomes available to Scientific Games or MDI on a nonconfidential basis from a source other than the other party or its advisors, provided that such source is not and was not bound by a confidentiality agreement with or for the benefit of the party with respect to whom the information pertains, or (iii) was in the possession of the disclosing party prior to the date of this Agreement and was obtained by such party without the breach, directly or indirectly, by such party or any other person of any obligation or duty owed to the party with respect to whom the information pertains.
(3) If a transaction between the Companies is not consummated or if either party at any time so requests, each party will promptly return to the other party all copies of the Evaluation Material in its possession or in the possession of its Representatives, and each party will destroy all copies of any analyses, compilations, studies or other documents prepared by it or for its use containing or reflecting any Evaluation Material.
(4) Without the prior written consent of the other party, each party will not, and will cause its Representatives not to, disclose to any person either the status of the investigations, discussions or negotiations taking place concerning a possible transaction between the parties, or that either party has requested or received Evaluation Material from the other party or any of the terms, conditions or other facts with respect to any such possible transaction except as disclosed in that certain letter of intent between the parties dated February 25, 2002. The term "person" as used in this Agreement will be interpreted broadly to include, without limitation, any corporation, company, partnership or individual. The obligations of Scientific Games and MDI under this paragraph (4) shall be subject to their disclosure obligations under federal and state securities laws.
(5) It is understood that each party will arrange for appropriate contacts for due diligence purposes. It is further understood that all (i) communications regarding the possible negotiated transaction contemplated hereby, (ii) requests for additional information, (ii) requests for facility tours or management meetings and (iv) discussions or questions regarding procedures, will be submitted or directed, in the case of Scientific Games, to Mr. Martin E. Schloss or Mr. C. Gray Bethea, Jr., and in the case of MDI, to Steve M. Saferin or Kenneth M. Przysiecki.
(6) Each party understands and acknowledges that the other party is making no representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material, and neither the disclosing party, nor any of its respective officers, directors, employees, stockholders, affiliates or agents will have any liability to the other party or any other person resulting from such other party's use of the Evaluation Material. Only those representations or warranties that are made to MDI or Scientific Games, as the case may be, in a Definitive Agreement when, as, and if it is executed, and subject to such limitations and restrictions as may be specified in such Definitive Agreement, will have any legal effect.
(7) Each party also understands and agrees that no contract or agreement providing for any transaction shall be deemed to exist between the parties unless and until a Definitive Agreement has been executed and delivered, and each party hereby waives, in advance, any claims (including, without limitation, breach of contract) in connection with or involving the other party or any of its businesses based on the purported existence of any such contract or agreement unless and until and only to the extent that the parties shall have entered into a Definitive Agreement with respect to which a breach is alleged. Each party also agrees that unless and until a Definitive Agreement between the parties with respect to a negotiated transaction has been executed and delivered, neither of the parties nor their stockholders has any legal obligation of any kind whatsoever with respect to any such transaction by virtue of this Agreement or any other written or oral expression with respect to such transaction except, in the case of this Agreement, for the matters specifically agreed to herein. For purposes of this paragraph, the term "Definitive Agreement" does not include an executed letter of intent or any other preliminary written agreement, nor does it include any written or verbal acceptance of an offer or bid on the part of either party. Each party further understands that (i) each party shall be free to negotiate for or with respect to any transaction respecting itself or any or all of its business as such party in its sole discretion shall determine (including, without limitation, negotiating with any of prospective merger partners, sellers or buyers and entering into a Definitive Agreement respecting any thereof without prior notice to the other party or any other person) and (ii) each party shall not have any claims whatsoever against the other party, or any of such other party's respective directors, officers, stockholders, affiliates or agents arising out of or relating to any such transaction (other than those as against the parties to a Definitive Agreement with you in accordance with the terms thereof). Neither this paragraph nor any other provision in this Agreement can be waived or amended except by written consent of the party which is sought to be bound, which consent shall specifically make such waiver or amendment.
(8) Each party agrees that the other party shall be entitled to equitable relief, including injunction and specific performance, in the event of any breach of the provisions of this Agreement, in addition to all other remedies available to the other part at law or in equity.
(9) It is further understood and agreed that no failure or delay by either party in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder.
This Agreement is for the benefit of the parties and will be governed by and construed in accordance with the laws of the State of Delaware. The obligations of the parties under this Agreement will expire three (3) years from the date of this Agreement.
IN WITNESS WHEREOF, the undersigned, by their duly authorized officers have caused this Agreement to be executed as of the date first written above.
SCIENTIFIC GAMES CORPORATION
By: /s/ MARTIN E. SCHLOSS
Name: Martin E. Schloss
Title: Vice President
MDI ENTERTAINMENT, INC.
By: /s/ STEVEN M. SAFERIN
Name: Steven M. Saferin
Title: Chief Executive Officer
| Contradiction |
550_nda-12 | 550_nda-12_0 | Q: Receiving Party may independently develop information similar to Confidential Information.
Text: MUTUAL CONFIDENTIALITY AND
NON-DISCLOSURE AGREEMENT
This Mutual Confidentiality and Non-Disclosure Agreement (this "Agreement") is made this day of March, 2002, and effective as of February 26, 2002, between MDI Entertainment, Inc. ("MDI"), whose address is 201 Ann Street, 5th Floor, Hartford, Connecticut 06103 and Scientific Games Corporation ("Scientific Games") whose address is 750 Lexington Avenue, 25th Floor, New York, New York 10022.
W I T N E S S E T H:
WHEREAS, in connection with the analyses of a possible negotiated transaction between MDI and Scientific Games (collectively, the "Companies"), each of the Companies has requested or will request certain oral and written information concerning the other Company from the officers, directors, employees and/or agents of the respective Companies (collectively, the "Evaluation Material").
NOW, THEREFORE, in consideration of the premises, each of which is made a contractual part hereof, MDI and Scientific Games agree in consideration of furnishing the other party with the Evaluation Material (it being understood that the parties are also agreeing to cause such of their respective affiliates, representatives and agents, including but not limited to, investment bankers, attorneys and accountants, which are provided with the Evaluation Material to comply with the provisions hereof):
(1) The Evaluation Material will be used solely for the purpose of evaluating a possible transaction between the Companies and not in any way directly or indirectly detrimental to the Companies (competitively or otherwise), and unless and until the parties have completed a transaction pursuant to a formal contractually binding agreement ("Definitive Agreement"), such information will be kept confidential, except that each party may disclose the Evaluation Material or portions thereof to those of its directors, officers, employees, consultants, advisors and professional representatives (the persons to whom such disclosure is permissible being collectively called "Representatives") in each case who need to know such information for the purpose of evaluating a possible transaction between the Companies; provided, however, that prior to disclosing the Evaluation Material or any portion thereof to any of such Representatives, the disclosing party will secure the undertaking of its Representative to be bound by the terms of this Confidentiality Agreement to the same extent that the disclosing party is bound by this Agreement. Each party agrees to be responsible for any breach of this Agreement or such undertaking by it or its Representatives. In the event that either party or any of its Representatives become legally compelled (by deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process) to disclose any of the Evaluation Material, such party shall provide the other party with prompt prior written notice of such requirement so that the other party may seek a protective order or other appropriate remedy and/or waive compliance with the terms of this Agreement. In the event that such protective order or other remedy is not obtained, or that the other party waives compliance with the provisions hereof, the disclosing party agrees to furnish only that portion of the Evaluation Material which it is advised by written opinion of its counsel is legally required and to exercise reasonable efforts to obtain assurance that confidential treatment will be accorded such Evaluation Material.
(2) The term "Evaluation Material" does not include any information which (i) at the time of disclosure or thereafter is generally available to and known by the public (other than in the case of Evaluation Material for Scientific Games as a result of a disclosure directly or indirectly by MDI or its Representatives and in the case of Evaluation Material for MDI as a result of a disclosure directly or indirectly by Scientific Games or its Representatives), (ii) was or becomes available to Scientific Games or MDI on a nonconfidential basis from a source other than the other party or its advisors, provided that such source is not and was not bound by a confidentiality agreement with or for the benefit of the party with respect to whom the information pertains, or (iii) was in the possession of the disclosing party prior to the date of this Agreement and was obtained by such party without the breach, directly or indirectly, by such party or any other person of any obligation or duty owed to the party with respect to whom the information pertains.
(3) If a transaction between the Companies is not consummated or if either party at any time so requests, each party will promptly return to the other party all copies of the Evaluation Material in its possession or in the possession of its Representatives, and each party will destroy all copies of any analyses, compilations, studies or other documents prepared by it or for its use containing or reflecting any Evaluation Material.
(4) Without the prior written consent of the other party, each party will not, and will cause its Representatives not to, disclose to any person either the status of the investigations, discussions or negotiations taking place concerning a possible transaction between the parties, or that either party has requested or received Evaluation Material from the other party or any of the terms, conditions or other facts with respect to any such possible transaction except as disclosed in that certain letter of intent between the parties dated February 25, 2002. The term "person" as used in this Agreement will be interpreted broadly to include, without limitation, any corporation, company, partnership or individual. The obligations of Scientific Games and MDI under this paragraph (4) shall be subject to their disclosure obligations under federal and state securities laws.
(5) It is understood that each party will arrange for appropriate contacts for due diligence purposes. It is further understood that all (i) communications regarding the possible negotiated transaction contemplated hereby, (ii) requests for additional information, (ii) requests for facility tours or management meetings and (iv) discussions or questions regarding procedures, will be submitted or directed, in the case of Scientific Games, to Mr. Martin E. Schloss or Mr. C. Gray Bethea, Jr., and in the case of MDI, to Steve M. Saferin or Kenneth M. Przysiecki.
(6) Each party understands and acknowledges that the other party is making no representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material, and neither the disclosing party, nor any of its respective officers, directors, employees, stockholders, affiliates or agents will have any liability to the other party or any other person resulting from such other party's use of the Evaluation Material. Only those representations or warranties that are made to MDI or Scientific Games, as the case may be, in a Definitive Agreement when, as, and if it is executed, and subject to such limitations and restrictions as may be specified in such Definitive Agreement, will have any legal effect.
(7) Each party also understands and agrees that no contract or agreement providing for any transaction shall be deemed to exist between the parties unless and until a Definitive Agreement has been executed and delivered, and each party hereby waives, in advance, any claims (including, without limitation, breach of contract) in connection with or involving the other party or any of its businesses based on the purported existence of any such contract or agreement unless and until and only to the extent that the parties shall have entered into a Definitive Agreement with respect to which a breach is alleged. Each party also agrees that unless and until a Definitive Agreement between the parties with respect to a negotiated transaction has been executed and delivered, neither of the parties nor their stockholders has any legal obligation of any kind whatsoever with respect to any such transaction by virtue of this Agreement or any other written or oral expression with respect to such transaction except, in the case of this Agreement, for the matters specifically agreed to herein. For purposes of this paragraph, the term "Definitive Agreement" does not include an executed letter of intent or any other preliminary written agreement, nor does it include any written or verbal acceptance of an offer or bid on the part of either party. Each party further understands that (i) each party shall be free to negotiate for or with respect to any transaction respecting itself or any or all of its business as such party in its sole discretion shall determine (including, without limitation, negotiating with any of prospective merger partners, sellers or buyers and entering into a Definitive Agreement respecting any thereof without prior notice to the other party or any other person) and (ii) each party shall not have any claims whatsoever against the other party, or any of such other party's respective directors, officers, stockholders, affiliates or agents arising out of or relating to any such transaction (other than those as against the parties to a Definitive Agreement with you in accordance with the terms thereof). Neither this paragraph nor any other provision in this Agreement can be waived or amended except by written consent of the party which is sought to be bound, which consent shall specifically make such waiver or amendment.
(8) Each party agrees that the other party shall be entitled to equitable relief, including injunction and specific performance, in the event of any breach of the provisions of this Agreement, in addition to all other remedies available to the other part at law or in equity.
(9) It is further understood and agreed that no failure or delay by either party in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder.
This Agreement is for the benefit of the parties and will be governed by and construed in accordance with the laws of the State of Delaware. The obligations of the parties under this Agreement will expire three (3) years from the date of this Agreement.
IN WITNESS WHEREOF, the undersigned, by their duly authorized officers have caused this Agreement to be executed as of the date first written above.
SCIENTIFIC GAMES CORPORATION
By: /s/ MARTIN E. SCHLOSS
Name: Martin E. Schloss
Title: Vice President
MDI ENTERTAINMENT, INC.
By: /s/ STEVEN M. SAFERIN
Name: Steven M. Saferin
Title: Chief Executive Officer
| Not mentioned |
550_nda-20 | 550_nda-20_0 | Q: Receiving Party may retain some Confidential Information even after the return or destruction of Confidential Information.
Text: MUTUAL CONFIDENTIALITY AND
NON-DISCLOSURE AGREEMENT
This Mutual Confidentiality and Non-Disclosure Agreement (this "Agreement") is made this day of March, 2002, and effective as of February 26, 2002, between MDI Entertainment, Inc. ("MDI"), whose address is 201 Ann Street, 5th Floor, Hartford, Connecticut 06103 and Scientific Games Corporation ("Scientific Games") whose address is 750 Lexington Avenue, 25th Floor, New York, New York 10022.
W I T N E S S E T H:
WHEREAS, in connection with the analyses of a possible negotiated transaction between MDI and Scientific Games (collectively, the "Companies"), each of the Companies has requested or will request certain oral and written information concerning the other Company from the officers, directors, employees and/or agents of the respective Companies (collectively, the "Evaluation Material").
NOW, THEREFORE, in consideration of the premises, each of which is made a contractual part hereof, MDI and Scientific Games agree in consideration of furnishing the other party with the Evaluation Material (it being understood that the parties are also agreeing to cause such of their respective affiliates, representatives and agents, including but not limited to, investment bankers, attorneys and accountants, which are provided with the Evaluation Material to comply with the provisions hereof):
(1) The Evaluation Material will be used solely for the purpose of evaluating a possible transaction between the Companies and not in any way directly or indirectly detrimental to the Companies (competitively or otherwise), and unless and until the parties have completed a transaction pursuant to a formal contractually binding agreement ("Definitive Agreement"), such information will be kept confidential, except that each party may disclose the Evaluation Material or portions thereof to those of its directors, officers, employees, consultants, advisors and professional representatives (the persons to whom such disclosure is permissible being collectively called "Representatives") in each case who need to know such information for the purpose of evaluating a possible transaction between the Companies; provided, however, that prior to disclosing the Evaluation Material or any portion thereof to any of such Representatives, the disclosing party will secure the undertaking of its Representative to be bound by the terms of this Confidentiality Agreement to the same extent that the disclosing party is bound by this Agreement. Each party agrees to be responsible for any breach of this Agreement or such undertaking by it or its Representatives. In the event that either party or any of its Representatives become legally compelled (by deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process) to disclose any of the Evaluation Material, such party shall provide the other party with prompt prior written notice of such requirement so that the other party may seek a protective order or other appropriate remedy and/or waive compliance with the terms of this Agreement. In the event that such protective order or other remedy is not obtained, or that the other party waives compliance with the provisions hereof, the disclosing party agrees to furnish only that portion of the Evaluation Material which it is advised by written opinion of its counsel is legally required and to exercise reasonable efforts to obtain assurance that confidential treatment will be accorded such Evaluation Material.
(2) The term "Evaluation Material" does not include any information which (i) at the time of disclosure or thereafter is generally available to and known by the public (other than in the case of Evaluation Material for Scientific Games as a result of a disclosure directly or indirectly by MDI or its Representatives and in the case of Evaluation Material for MDI as a result of a disclosure directly or indirectly by Scientific Games or its Representatives), (ii) was or becomes available to Scientific Games or MDI on a nonconfidential basis from a source other than the other party or its advisors, provided that such source is not and was not bound by a confidentiality agreement with or for the benefit of the party with respect to whom the information pertains, or (iii) was in the possession of the disclosing party prior to the date of this Agreement and was obtained by such party without the breach, directly or indirectly, by such party or any other person of any obligation or duty owed to the party with respect to whom the information pertains.
(3) If a transaction between the Companies is not consummated or if either party at any time so requests, each party will promptly return to the other party all copies of the Evaluation Material in its possession or in the possession of its Representatives, and each party will destroy all copies of any analyses, compilations, studies or other documents prepared by it or for its use containing or reflecting any Evaluation Material.
(4) Without the prior written consent of the other party, each party will not, and will cause its Representatives not to, disclose to any person either the status of the investigations, discussions or negotiations taking place concerning a possible transaction between the parties, or that either party has requested or received Evaluation Material from the other party or any of the terms, conditions or other facts with respect to any such possible transaction except as disclosed in that certain letter of intent between the parties dated February 25, 2002. The term "person" as used in this Agreement will be interpreted broadly to include, without limitation, any corporation, company, partnership or individual. The obligations of Scientific Games and MDI under this paragraph (4) shall be subject to their disclosure obligations under federal and state securities laws.
(5) It is understood that each party will arrange for appropriate contacts for due diligence purposes. It is further understood that all (i) communications regarding the possible negotiated transaction contemplated hereby, (ii) requests for additional information, (ii) requests for facility tours or management meetings and (iv) discussions or questions regarding procedures, will be submitted or directed, in the case of Scientific Games, to Mr. Martin E. Schloss or Mr. C. Gray Bethea, Jr., and in the case of MDI, to Steve M. Saferin or Kenneth M. Przysiecki.
(6) Each party understands and acknowledges that the other party is making no representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material, and neither the disclosing party, nor any of its respective officers, directors, employees, stockholders, affiliates or agents will have any liability to the other party or any other person resulting from such other party's use of the Evaluation Material. Only those representations or warranties that are made to MDI or Scientific Games, as the case may be, in a Definitive Agreement when, as, and if it is executed, and subject to such limitations and restrictions as may be specified in such Definitive Agreement, will have any legal effect.
(7) Each party also understands and agrees that no contract or agreement providing for any transaction shall be deemed to exist between the parties unless and until a Definitive Agreement has been executed and delivered, and each party hereby waives, in advance, any claims (including, without limitation, breach of contract) in connection with or involving the other party or any of its businesses based on the purported existence of any such contract or agreement unless and until and only to the extent that the parties shall have entered into a Definitive Agreement with respect to which a breach is alleged. Each party also agrees that unless and until a Definitive Agreement between the parties with respect to a negotiated transaction has been executed and delivered, neither of the parties nor their stockholders has any legal obligation of any kind whatsoever with respect to any such transaction by virtue of this Agreement or any other written or oral expression with respect to such transaction except, in the case of this Agreement, for the matters specifically agreed to herein. For purposes of this paragraph, the term "Definitive Agreement" does not include an executed letter of intent or any other preliminary written agreement, nor does it include any written or verbal acceptance of an offer or bid on the part of either party. Each party further understands that (i) each party shall be free to negotiate for or with respect to any transaction respecting itself or any or all of its business as such party in its sole discretion shall determine (including, without limitation, negotiating with any of prospective merger partners, sellers or buyers and entering into a Definitive Agreement respecting any thereof without prior notice to the other party or any other person) and (ii) each party shall not have any claims whatsoever against the other party, or any of such other party's respective directors, officers, stockholders, affiliates or agents arising out of or relating to any such transaction (other than those as against the parties to a Definitive Agreement with you in accordance with the terms thereof). Neither this paragraph nor any other provision in this Agreement can be waived or amended except by written consent of the party which is sought to be bound, which consent shall specifically make such waiver or amendment.
(8) Each party agrees that the other party shall be entitled to equitable relief, including injunction and specific performance, in the event of any breach of the provisions of this Agreement, in addition to all other remedies available to the other part at law or in equity.
(9) It is further understood and agreed that no failure or delay by either party in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder.
This Agreement is for the benefit of the parties and will be governed by and construed in accordance with the laws of the State of Delaware. The obligations of the parties under this Agreement will expire three (3) years from the date of this Agreement.
IN WITNESS WHEREOF, the undersigned, by their duly authorized officers have caused this Agreement to be executed as of the date first written above.
SCIENTIFIC GAMES CORPORATION
By: /s/ MARTIN E. SCHLOSS
Name: Martin E. Schloss
Title: Vice President
MDI ENTERTAINMENT, INC.
By: /s/ STEVEN M. SAFERIN
Name: Steven M. Saferin
Title: Chief Executive Officer
| Contradiction |
550_nda-3 | 550_nda-3_0 | Q: Confidential Information may include verbally conveyed information.
Text: MUTUAL CONFIDENTIALITY AND
NON-DISCLOSURE AGREEMENT
This Mutual Confidentiality and Non-Disclosure Agreement (this "Agreement") is made this day of March, 2002, and effective as of February 26, 2002, between MDI Entertainment, Inc. ("MDI"), whose address is 201 Ann Street, 5th Floor, Hartford, Connecticut 06103 and Scientific Games Corporation ("Scientific Games") whose address is 750 Lexington Avenue, 25th Floor, New York, New York 10022.
W I T N E S S E T H:
WHEREAS, in connection with the analyses of a possible negotiated transaction between MDI and Scientific Games (collectively, the "Companies"), each of the Companies has requested or will request certain oral and written information concerning the other Company from the officers, directors, employees and/or agents of the respective Companies (collectively, the "Evaluation Material").
NOW, THEREFORE, in consideration of the premises, each of which is made a contractual part hereof, MDI and Scientific Games agree in consideration of furnishing the other party with the Evaluation Material (it being understood that the parties are also agreeing to cause such of their respective affiliates, representatives and agents, including but not limited to, investment bankers, attorneys and accountants, which are provided with the Evaluation Material to comply with the provisions hereof):
(1) The Evaluation Material will be used solely for the purpose of evaluating a possible transaction between the Companies and not in any way directly or indirectly detrimental to the Companies (competitively or otherwise), and unless and until the parties have completed a transaction pursuant to a formal contractually binding agreement ("Definitive Agreement"), such information will be kept confidential, except that each party may disclose the Evaluation Material or portions thereof to those of its directors, officers, employees, consultants, advisors and professional representatives (the persons to whom such disclosure is permissible being collectively called "Representatives") in each case who need to know such information for the purpose of evaluating a possible transaction between the Companies; provided, however, that prior to disclosing the Evaluation Material or any portion thereof to any of such Representatives, the disclosing party will secure the undertaking of its Representative to be bound by the terms of this Confidentiality Agreement to the same extent that the disclosing party is bound by this Agreement. Each party agrees to be responsible for any breach of this Agreement or such undertaking by it or its Representatives. In the event that either party or any of its Representatives become legally compelled (by deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process) to disclose any of the Evaluation Material, such party shall provide the other party with prompt prior written notice of such requirement so that the other party may seek a protective order or other appropriate remedy and/or waive compliance with the terms of this Agreement. In the event that such protective order or other remedy is not obtained, or that the other party waives compliance with the provisions hereof, the disclosing party agrees to furnish only that portion of the Evaluation Material which it is advised by written opinion of its counsel is legally required and to exercise reasonable efforts to obtain assurance that confidential treatment will be accorded such Evaluation Material.
(2) The term "Evaluation Material" does not include any information which (i) at the time of disclosure or thereafter is generally available to and known by the public (other than in the case of Evaluation Material for Scientific Games as a result of a disclosure directly or indirectly by MDI or its Representatives and in the case of Evaluation Material for MDI as a result of a disclosure directly or indirectly by Scientific Games or its Representatives), (ii) was or becomes available to Scientific Games or MDI on a nonconfidential basis from a source other than the other party or its advisors, provided that such source is not and was not bound by a confidentiality agreement with or for the benefit of the party with respect to whom the information pertains, or (iii) was in the possession of the disclosing party prior to the date of this Agreement and was obtained by such party without the breach, directly or indirectly, by such party or any other person of any obligation or duty owed to the party with respect to whom the information pertains.
(3) If a transaction between the Companies is not consummated or if either party at any time so requests, each party will promptly return to the other party all copies of the Evaluation Material in its possession or in the possession of its Representatives, and each party will destroy all copies of any analyses, compilations, studies or other documents prepared by it or for its use containing or reflecting any Evaluation Material.
(4) Without the prior written consent of the other party, each party will not, and will cause its Representatives not to, disclose to any person either the status of the investigations, discussions or negotiations taking place concerning a possible transaction between the parties, or that either party has requested or received Evaluation Material from the other party or any of the terms, conditions or other facts with respect to any such possible transaction except as disclosed in that certain letter of intent between the parties dated February 25, 2002. The term "person" as used in this Agreement will be interpreted broadly to include, without limitation, any corporation, company, partnership or individual. The obligations of Scientific Games and MDI under this paragraph (4) shall be subject to their disclosure obligations under federal and state securities laws.
(5) It is understood that each party will arrange for appropriate contacts for due diligence purposes. It is further understood that all (i) communications regarding the possible negotiated transaction contemplated hereby, (ii) requests for additional information, (ii) requests for facility tours or management meetings and (iv) discussions or questions regarding procedures, will be submitted or directed, in the case of Scientific Games, to Mr. Martin E. Schloss or Mr. C. Gray Bethea, Jr., and in the case of MDI, to Steve M. Saferin or Kenneth M. Przysiecki.
(6) Each party understands and acknowledges that the other party is making no representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material, and neither the disclosing party, nor any of its respective officers, directors, employees, stockholders, affiliates or agents will have any liability to the other party or any other person resulting from such other party's use of the Evaluation Material. Only those representations or warranties that are made to MDI or Scientific Games, as the case may be, in a Definitive Agreement when, as, and if it is executed, and subject to such limitations and restrictions as may be specified in such Definitive Agreement, will have any legal effect.
(7) Each party also understands and agrees that no contract or agreement providing for any transaction shall be deemed to exist between the parties unless and until a Definitive Agreement has been executed and delivered, and each party hereby waives, in advance, any claims (including, without limitation, breach of contract) in connection with or involving the other party or any of its businesses based on the purported existence of any such contract or agreement unless and until and only to the extent that the parties shall have entered into a Definitive Agreement with respect to which a breach is alleged. Each party also agrees that unless and until a Definitive Agreement between the parties with respect to a negotiated transaction has been executed and delivered, neither of the parties nor their stockholders has any legal obligation of any kind whatsoever with respect to any such transaction by virtue of this Agreement or any other written or oral expression with respect to such transaction except, in the case of this Agreement, for the matters specifically agreed to herein. For purposes of this paragraph, the term "Definitive Agreement" does not include an executed letter of intent or any other preliminary written agreement, nor does it include any written or verbal acceptance of an offer or bid on the part of either party. Each party further understands that (i) each party shall be free to negotiate for or with respect to any transaction respecting itself or any or all of its business as such party in its sole discretion shall determine (including, without limitation, negotiating with any of prospective merger partners, sellers or buyers and entering into a Definitive Agreement respecting any thereof without prior notice to the other party or any other person) and (ii) each party shall not have any claims whatsoever against the other party, or any of such other party's respective directors, officers, stockholders, affiliates or agents arising out of or relating to any such transaction (other than those as against the parties to a Definitive Agreement with you in accordance with the terms thereof). Neither this paragraph nor any other provision in this Agreement can be waived or amended except by written consent of the party which is sought to be bound, which consent shall specifically make such waiver or amendment.
(8) Each party agrees that the other party shall be entitled to equitable relief, including injunction and specific performance, in the event of any breach of the provisions of this Agreement, in addition to all other remedies available to the other part at law or in equity.
(9) It is further understood and agreed that no failure or delay by either party in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder.
This Agreement is for the benefit of the parties and will be governed by and construed in accordance with the laws of the State of Delaware. The obligations of the parties under this Agreement will expire three (3) years from the date of this Agreement.
IN WITNESS WHEREOF, the undersigned, by their duly authorized officers have caused this Agreement to be executed as of the date first written above.
SCIENTIFIC GAMES CORPORATION
By: /s/ MARTIN E. SCHLOSS
Name: Martin E. Schloss
Title: Vice President
MDI ENTERTAINMENT, INC.
By: /s/ STEVEN M. SAFERIN
Name: Steven M. Saferin
Title: Chief Executive Officer
| Entailment |